MORAL  LAW 


AND 


CIVIL  LAW 


PARTS   OF  THE  SAME  THING 


BY  ELI  F.  HITTER 


REVISED    EDITION 


WESTERVILLE.  OHIO: 
AMERICAN  ISSUE  PUBLISHING  COMPANY 

1910 


X 


COPYRIGHT  BY 
THE  AMERICAN  ISSUE  PUBLISHING  COMPANY 

1910 


Preface 


MANY  years  ago,  in  an  important  trial  in 
the  city  of  Indianapolis,  it  was  sought  to 
break  down  the  very  strong  testimony  of 
a  witness  by  showing  that  his  character  was 
bad.  It  was  not  an  attack  upon  the  general 
reputation  of  the  witness  for  truthfulness  and 
veracity,  but  the  inquiry  was  directed  to  his 
general  moral  character.  About  the  same 
time,  in  another  case  in  the  same  court,  upon 
the  application  of  a  man  to  be  admitted  to  the 
bar,  a  question  was  raised  upon  his  moral 
character.  A  few  weeks  later,  in  another 
case,  in  another  court,  in  the  same  courthouse, 
upon  an  application  of  a  man  for  a  license  to 
sell  intoxicating  liquors,  an  issue  was  made 
upon  his  moral  character.  In  each  of  these 
cases  witnesses  testified  on  each  side  of  the 
question.  In  each  case  witnesses  who  testi- 
fied to  the  good  moral  character  of  an  indi- 

759607 


4  PREFACE 

vidual,  on  cross-examination  specified  truth- 
fulness, honesty,  and  some  other  elements  of 
morality  which  were  characteristic  of  the  indi- 
vidual, but  admitted  defects  in  some  of  the 
moral  elements  of  good  character,  while  wit- 
nesses who  testified  to  the  bad  moral  character, 
on  cross-examination  specified  defects  in 
the  moral  character  of  the  individual 
and  immorality  in  certain  regards  in 
support  of  a  general  statement  of  bad 
moral  character.  And  another  case  was  a  suit 
on  a  promissory  note  in  which  a  defense  was 
successfully  made  that  the  note  was  given  for 
an  immoral  and  hence  illegal  consideration. 
I  was,  at  the  time  when  these  cases  were  tried, 
a  young  practitioner  at  the  bar.  I  was  very 
deeply  impressed  in  each  case  by  the  apparent 
uncertainty  in  the  minds  of  witnesses  as  to 
what  is  meant  in  the  law  by  moral  character 
and  morality;  not  only  the  uncertainty  in 
the  minds  of  witnesses  in  these  regards,  but 
also  the  manifest  uncertainty  in  the  minds  of 
attorneys  and  judges  in  the  same  regard.  On 
account  of  these  exhibitions  of  uncertainty  I 
became  greatly  confused  in  my  own  mind 
upon  this  subject.  Lawyers  and  judges  in 
each  of  these  cases  undertook  to  explain  to 
witnesses  what  was  meant  by  moral  character 
and  morality,  and  in  doing  so  made  it  very 
clear  that  they  had  no  more  definite  ideas  upon 


PREFACE  5 

the  subject  than  the  witnesses  had.  From  my 
experience  in  the  practice  of  law  and  other 
business  and  social  relations  since  the  trial  of 
the  cases  to  which  I  have  referred,  having  seen 
the  same  questions  often  arise  in  the  trial  of 
cases  in  court,  I  have  become  satisfied  that 
the  general  public  has  no  definite  idea,  neither 
is  there  generally  a  clear  understanding 
among  lawyers  and  judges,  as  to  the  meaning 
of  "morality,"  "moral  character,"  and  "im- 
morality" in  legal  contemplation.  Truthful- 
ness, or  business  honesty,  or  generosity,  in 
fact,  every  other  term  that  is  used  in  speaking 
of  the  characteristics  of  individuals,  seems  to 
be  quite  well  understood.  Judges,  lawyers, 
witnesses,  and  the  public  generally  can  deal 
with  these  terms  with  confidence  in  their  un- 
derstanding, but  when  the  question  of  legal 
morality  is  raised  the  minds  of  all  at  once  be- 
come clouded.  The  question  as  to  what  is 
meant  by  the  terms  "morality,"  or  "moral  char- 
acter," or  "immorality,"  is  generally  settled 
upon  an  assumed  moral  standard  in  a  particu- 
lar locality  or  the  peculiar  views  of  each  indi- 
vidual. The  impression  seems  to  largely  pre- 
vail that  this  question  may  be  settled  by  ad- 
ding up  the  good  qualities  in  one  column,  the 
bad  in  another,  and  striking  a  balance.  This 
is  a  very  dangerous  process.  I  have  known 
men  of  many  most  excellent  qualities,  but  in 


6  PREFACE 

one  respect  almost,  or  quite,  totally  depraved. 
Their  good  qualities  were  used  to  give  them 
greater  influence  in  the  line  of  their  depravity. 

There  seems  to  be  a  fair  degree  of  certainty 
in  the  public  mind  generally  as  to  the  meaning 
of  Christianity  or  Christian  morality.  The 
great  uncertainty  in  the  meaning  of  these 
terms  arises  when  they  are  used  in  legal  con- 
templation. As  morality  and  moral  character 
are  terms  in  very  prominent  and  constant  use 
in  judicial  proceedings,  they  must  have  some 
definite  meaning,  arid  there  must  be  some  way 
of  determining  definitely  what  they  do  mean. 
The  purpose  of  this  book  is  to  aid  in  settling 
these  questions.  I  claim  no  new  discovery 
in  the  meaning  of  terms,  and  what  I  should 
appreciate  as  the  highest  compliment  that 
could  be  paid  to  this  work  would  be  to  have 
it  proved  that  what  is  claimed  by  the  author 
for  the  legal  contemplation  of  morality  has 
been  a  settled  question  for  a  great  many  years. 

If  I  can  succeed  in  calling  attention  to  and 
aid  in  the  correction  of  errors  in  the  compre- 
hension and  application  of,  this  term,  and  aid 
in  arousing  sentiment  in  support  of  morality 
in  the  fundamental  position  it  occupies  in  civil 
affairs,  I  shall  have  accomplished  my  purpose 
and  feel  gratified.  I  have  not  undertaken  to 
give  exhaustive  consideration  to  the  subject 
considered,  but  to  present  and  support  them  in 


PREFACE  7 

the  briefest  possible  way  that  I  could  do,  put- 
ting the  reader  upon  a  line  of  investigation 
which  can  be  pursued  to  great  extent  and 
profit.  ELL  F.  RITTER, 

Indianapolis,  Indiana. 


CONTENTS 


CHAPTER  I. 
Law  of  Public  Necessity n 

CHAPTER  II. 
Morality   is  a   Fundamental   Principal   in 

Civil  Government   23 

CHAPTER  III. 
What  is  Morality? 45 

CHAPTER  IV. 
What  is  Immorality? 65 

CHAPTER  V. 
Legislation  and  Morality 119 

CHAPTER  VI. 
Common  Law  and  Morality 127 

CHAPTER  VII. 
Common  Law  History  of  Morality 131 

CHAPTER  VIII. 
Morality  in  Civil  Court 145 


CHAPTER  IX. 
Morality  is  Fundamental  Law 157 

CHAPTER  X. 
The  Superhuman  in  Law 171 

CHAPTER   XI. 
A  Definite  Standard  of  Morality 185 

CHAPTER  XII. 
The  Law  Grows 189 

CHAPTER  XIII. 

Evil    Must    Be    Suppressed    and    Good 
Promoted    231 

CHAPTER  XIV. 
No  Privileges  for  Evil 251 

CHAPTER  XV. 
The  Scope  of  Morality 275 


Moral  Law  and  Civil  Law 
Parts  of  the  Same  Thing 


CHAPTER  i:.  *, 
Law  of  Public  Necessity. 

THERE  is  a  law  now  in  full  force  in  every 
State  in  this  Union,  in  the  government 
of  the  United  States,  and  in  every  gov- 
ernment in  the  world,  that  was  hoary  with  the 
frosts  of  centuries  when  Moses  bared  his  feet 
in  the  presence  of  the  burning  bush,  and  that 
has  ever  since  been  the  fundamental  law  in 
every  civilized  government  of  the  world.  If 
you  were  to  ask  me  for  the  book  and  page 
where  this  great  law,  with  its  full  scope  and 
specific  provisions,  might  be  found,  I  should 
not,  neither  would  any  other  lawyer,  be  able 
to  give  them  to  you.  I  refer  to  the  law  of 
public  necessity.  This  is  not  only  an  impor- 
tant law,  but  it  is  the  supreme  law  of  every 


12        MORAL  LAW  AND  CIVIL  LAW 

government  and  every  land.  This  law  was 
denned  and  given  its  position  in  the  Roman 
government  before  the  beginning  of  the  Chris- 
tian era  in  the  following  maxim,  "Salus  Populi 
Suprema  Lex,"  which  is  translated  to-day  into 
the  English  language  by  the  expression,  "The 
Public  Welfare  is  the  Supreme  Law."  While 
I  may  not  be  able  to  give  you  the  scope  and 
specific  pfoyistons  of  this  law,  I  may  aid  the 
•  reader  in  gaining1  fuller  comprehension  of  the 
same  by  a"  few  illustrations. 

When  the  city  of  Chicago  was  on  fire  in  1871 
and  had  been  for  nearly  two  days,  and  the  city 
government  had  become  exhausted  in  its  ef- 
forts to  suppress  the  flames  and  had  acknowl- 
edged its  defeat,  and  the  State  of  Illinois 
stood  paralyzed  in  the  presence  of  the  fire  king. 
General  Sheridan  was  placed  in  command,  and 
became  substantially  the  only  governing 
force  for  the  time  being  in  that  locality.  Gen- 
eral Sheridan  was  the  man  to  meet  the  de- 
mands of  an  emergency.  He  did  not  stop  to 
ask  the  lawyer  of  Chicago  what  he  could  law- 
fully do,  nor  the  business  men  what  was  ex- 
pected of  him.  He  proceeded  to  do  what  the 
necessity  of  the  occasion  required.  He  placed 
powder  in  the  basements  of  a  row  of  buildings 
two  squares  long,  and  at  a  given  signal  blew 
up  and  utterly  destroyed  the  buildings,  with 
their  contents.  Those  buildings  and  their  con- 


PARTS  OF  THE  SAME  THING          13 

tents  were  private  property.  Individuals 
held  the  title.  The  owners  were  not  asked  to 
consent,  and  their  objections  were  unheeded. 
Their  property  was  destroyed,  and  there  was 
no  provision  of  law  by  which  any  compensa- 
tion could  be  recovered.  This  action  was 
authorized  and  justified  by  the  law  of  public 
necessity. 

Years  ago  a  railroad  train,  loaded  with  pas- 
sengers, leaving  a  Southern  city,  was  stopped 
in  a  rural  locality,  run  on  to  a  switch,  and 
compelled  to  stand  still  for  two  weeks  without 
allowing  any  passenger  to  leave.  This  inter- 
ference with  the  rights  of  the  passengers,  and 
their  imprisonment,  was  justified  under  a  pub- 
lic necessity  to  prevent  the  spread  of  yellow 
fever. 

A  few  years  ago  officers  of  the  law  went  to 
the  residence  of  a  prominent  citizen  of  Phila- 
delphia, and  informed  him  that  they  were  or- 
dered to  convey  his  wife  to  the  pesthouse  be- 
cause she  was  afflicted  with  smallpox.  He  did 
not  consent,  claiming  that  he  had  made  ample 
provision  for  her  care  and  the  prevention  of 
any  public  hazard  on  account  of  her  disease. 
Regardless  of  his  resistance,  his  wife  was 
taken  out  of  bed  by  force,  and  carried  away  to 
the  pest  hospital.  The  husband  followed  the 
ambulance  to  the  door  of  the  hospital  and 
asked  to  be  admitted,  that  he  might  be  with 


14        MORAL  LAW  AND  CIVIL  LAW 

his  wife  in  her  sickness,  but  he  was  refused. 
That  man's  wife  died — he  never  knew  when — 
and  was  buried — he  never  knew  where.  If 
there  is  any  right  among  men  more  sacred 
than  all  others,  it  is  the  right  to  be  with  and 
care  for  members  of  our  own  families  in  time 
of  sickness,  to  stand  by  them  in  the  hour  of 
death,  and  to  bury  them  in  a  place  selected  by 
us  for  that  purpose,  where  the  last  resting 
place  may  be  marked  and  visited.  Yet  that 
most  sacred  of  all  rights  has  not  a  feather's 
weight  when  it  come  in  conflict  with  the  law 
of  public  necessity. 

In  1863  the  government  of  the  United  States 
needed  men  for  military  duty.  A  draft  was 
ordered  in  Indiana  to  meet  the  emergency  of 
the  last  call  for  troops  and  to  add  to  the 
thousands  of  her  sons  who  were  already  in 
the  field  as  volunteers.  Among  those  who 
were  drafted  was  a  poor  man  in  southern  Indi- 
ana. When  notified,  he  said :  Surely  the  gov- 
ernment will  not  make  me  leave  my  feeble 
wife  and  three  little  children  and  go  into  the 
army.  I  have  no  way  of  providing  for  them 
while  I  am  gone,  and  I  have  no  money  to  hire 
a  substitute."  However  touching  such  an  ap- 
peal might  be,  it  could  not  be  regarded.  He 
was  compelled  to  leave  that  family  mainly  to 
the  care  of  neighbors,  was  forced  into  the  army 
and  onto  the  field  of  battle.  At  night,  after 


PARTS  OF  THE  SAME  THING          15 

the  first  day  of  that  bloody  battle  of  Chicka- 
mauga,  among  the  dead  bodies  brought  to- 
gether was  found  the  mangled  and  lifeless 
body  of  the  poor  conscript.  As  his  comrades 
looked  into  the  glassy  eyes  and  pallid  face, 
and  thought  of  the  poor,  sick  wife  and  little 
children  in  their  helpless  condition,  they  said, 
"It  was  a  hard  thing  that  the  government  re- 
quired this  poor  man."  But  when  the  gov- 
ernment has  battles  to  fight,  neither  inconveni- 
ence, personal  hazard,  nor  the  needs  of  a  fam- 
ily can  excuse  any  man  from  its  call  to  arms. 
A  citizen  of  Indianapolis  years  ago,  who 
possessed  all  the  privileges  and  rights  that  any 
other  citizen  in  the  city  possessed,  was  sud- 
denly arrested,  tried,  convicted,  condemned, 
and  on  a  day  fixed  for  that  purpose  was  com- 
pelled to  ascend  a  scaffold,  a  rope  was  ad- 
justed about  his  neck,  his  hands  and  feet 
were  tied,  the  platform  on  which  he  stood  was 
sprung,  and  he  was  strangled  to  death.  While 
the  lifeless  body  of  that  man  hung  suspended 
between  the  heavens  and  the  earth,  an  oppor- 
tunity was  offered  to  philosophize  on  the 
rights  of  an  individual.  An  execution  was  is- 
sued upon  the  judgment  rendered  in  his  case, 
for  costs,  and  every  dollar's  worth  of  property 
he  had  in  the  world  was  sold,  and  the  proceeds 
applied  to  pay  the  expenses  of  the  judicial 
proceedings  that  ended  with  the  taking  of  his 


16        MORAL  LAW  AND  CIVIL  LAW 

life.  He  had  been  deprived  of  all  his  rights  of 
property,  liberty,  the  pursuit  of  happiness,  and 
life  itself.  All  this  because  he  had  violated  a 
law  of  public  necessity,  made  in  the  interest 
and  for  the  protection  of  society.  It  is  true 
this  proceeding  was  under  a  statute,  yet  such 
a  proceeding  would  have  been  lawful  if  there 
had  been  no  statute,  being  authorized  by  the 
common  law,  and  existed  in  the  day  when 
Haman  was  hanged  by  order  of  Ahasuerus. 

The  officers  of  the  law  may  enter  a  man's 
house,  and  analyze  the  water  in  the  well,  and 
say  to  him  that  the  water  has  in  it  the  germs 
of  disease,  he  must  not  use  it — neither  himself 
nor  his  family — nor  permit  anyone  else  to  use 
it.  He  may  answer:  "This  is  my  property; 
I  had  that  well  dug;  we  have  used  that  water 
for  twelve  years.  I  like  it,  and  this  is  a  free 
country."  Nevertheless,  if  he  disregards  the 
injunction,  he  may  be  arrested,  fined,  and  im- 
prisoned, and  that  well — that  poison  fountain 
— filled  to  the  brim  to  prevent  the  spread  of 
disease,  and  he  may  be  compelled  to  pay  the 
expenses  of  all  these  proceedings.  They  may 
examine  the  milk  in  the  pantry,  and  destroy  it 
because  it  is  unhealthful.  All  this  is  under  the 
law  of  public  necessity,  to  prevent  the  spread 
of  disease.  There  will  be  no  conflict  upon  the 
proposition,  that  anyone  with  his  whole  family 
may  be  absolutely  restrained  from  using  food, 


PARTS  OF  THE  SAME  THING         17 

milk  or  drinking  water  that  is  unhealthful. 
When  the  question  is  settled  that  a  food  or  a 
fluid  is  unhealthful  the  law  of  public  necessity 
asserts  that  it  shall  not  be  used.  It  would  not 
be  difficult  to  find  illustrations  of  this  principle 
in  every  State  and  in  every  government.  The 
law  of  public  necessity  is  only  limited  by  the 
necessity  itself.  Whatever  the  public  neces- 
sity requires  to  be  done  can  be  legally  done 
anywhere.  It  is  not  conceivable  that  there 
should  be  a  public  necessity  and  no  law  to 
meet  it,  and  the  public  be  thereby  left  helpless. 
It  can  be  readily  seen  that  no  individual  can 
assert  a  personal  right  against  the  law  of  pub- 
lic necessity.  There  is  no  such  thing,  and 
never  was,  as  an  absolute  individual  right  to 
do  any  particular  thing,  or  to  eat  or  drink  any 
particular  thing,  or  to  enjoy  the  associations 
and  bliss  of  one's  own  family,  or  to  live,  in 
conflict  with  the  law  of  public  necessity. 

The  law  of  public  necessity  demands  that 
everything  which  it  requires  to  be  done  shall 
be  done.  It  also,  with  the  same  authority, 
commands  that  everything  which  it  requires 
not  to  be  done  shall  not  be  done.  I  present 
another  phase  of  this  law  by  illustrations. 
Sees.  4569  and  4570,  revised  statutes  of  the 
United  States,  applying  to  every  vessel  that 
flies  the  flag  and  claims  the  protection  of  this 
government,  read  as  follows  :  Sec.  4569.  "Ev- 


18        MORAL  LAW  AND  CIVIL  LAW 

ery  vessel  belonging  to  a  citizen  of  the  United 
States,  bound  from  a  port  in  the  United 
States  to  any  foreign  port,  or  being  of  the 
burden  of  seventy-five  tons  or  upward,  and 
bound  from  a  port  on  the  Atlantic  to  a  port  on 
the  Pacific,  or  vice  versa,  shall  be  provided 
with  a  chest  of  medicines;  and  every  sailing 
vessel  bound  on  a  voyage  across  the  Atlantic 
or  Pacific  Ocean,  or  around  Cape  Horn,  or 
the  Cape  of  Good  Hope,  or  engaged  in  the 
whale  or  other  fisheries,  or  in  sealing,  shall  be 
provided  with,  and  cause  to  be  kept,  a  suffi- 
cient quantity  of  lime  or  lemon  juice,  and  also 
sugar  and  vinegar,  and  other  antiscorbutics, 
to  be  served  out  to  every  seaman  as  follows : 
The  master  of  every  vessel  will  serve  the 
lime  or  lemon  juice,  and  sugar  and  vinegar, 
to  the  crew  within  ten  days  after  the  salt  pro- 
visions mainly  have  been  served  out  to  the 
crew,  and  as  long  afterward  as  such  consump- 
tion of  salt  provisions  continues;  the  lime  or 
lemon  juice  and  sugar  daily  at  the  rate  of  half 
an  ounce  each  per  day ;  and  the  vinegar  weekly 
at  the  rate  of  half  a  pint  per  week  for  each 
member  of  the  crew." 

Sec.  4570.  "If  on  any  such  vessel,  such 
medicines,  medical  stores,  lime  or  lemon  juice, 
or  other  articles,  sugar  and  vinegar,  as  are 
required  by  the  preceding  section,  are  not  pro- 
vided and  kept  on  board  as  required,  the  mas- 


PARTS  OF  THE  SAME  THING          19 

ter  or  owner  shall  be  liable  to  a  penalty  of  not 
more  than  five  hundred  dollars ;  and  if  the  mas- 
ter of  any  such  vessel  neglects  to  serve  out 
the  lime  or  lemon  juice,  and  sugar  and  vinegar, 
in  the  case  and  manner  directed,  he  shall  for 
each  such  offense  be  liable  to  a  penalty  of  not 
more  than  one  hundred  dollars;  and  if  any 
master  is  convicted  for  either  of  the  offenses 
mentioned  in  this  section,  and  it  appears  that 
the  offense  is  owing  to  the  default  of  the 
owner,  such  master  may  recover  the  amount 
of  such  penalty,  and  the  costs  incurred  by 
him,  from  the  owner." 

It  will  be  readily  seen  that  these  sections 
require  that  the  supplies  therein  named  shall 
be  provided,  and  issued,  and  used. 

This  law  has  been  enforced,  and  convictions 
and  penalties  adjudged  under  it,  in  a  number 
of  cases.  Years  ago  the  captain  of  a  vessel 
was  brought  before  the  United  State  Court 
in  San  Francisco,  charged  with  failing  to  issue 
lime  juice,  of  which  he  had  a  supply,  upon  a 
voyage  just  ended.  He  answered,  admitting 
the  charge,  but  saying  that  the  men  had  asked 
for  an  extra  ration  of  coffee  instead  of  lime 
juice,  and  as  he  saw  no  necessity  for  the  lime 
juice,  he  yielded  to  the  wishes  of  the  men. 
The  court  held  that  the  officer  was  not  made 
the  judge  of  the  necessity  for  issuing  the  lime 
juice;  the  law  was  peremptory,  and  it  must  be 


20        MORAL  LAW  AND  CIVIL  LAW 

obeyed;  and  the  officer  was  fined.  However, 
as  he  had  acted  from  good  intention,  his  fine 
was  merely  nominal. 

The  legal  question  has  been  settled  in  this 
country,  that  any  government,  having  juris- 
diction, may  require  children  or  adults  to  sub- 
mit to  vaccination  in  order  to  prevent  the 
spread  of  smallpox. 

If  the  government  of  the  United  States,  for 
the  protection  of  the  community  on  a  great 
steamer  that  numbers  its  crew  by  the  hun- 
dreds and  its  passengers  by  the  thousands,  or 
the  little  whaler  that  has  a  few  persons  on 
board,  may  repuire  that  lime  juice,  onions,  or 
other  specific  shall  be  provided  and  used  to 
meet  the  needs  of,  and  to  protect,  such  com- 
munity on  the  high  seas,  and  a  government 
may  require  vaccination  for  like  purpose  on 
the  land,  then  the  United  States  government, 
or  any  other  government,  may  make  the  same, 
or  any,  provisions  and  requirements  for  such 
communities  on  the  land  as  public  necessity 
may  require  in  any  case.  Upon  these  illustra- 
tions I  present  the  proposition,  that  there  is  no 
individual  right  to  refuse  to  eat,  or  to  drink, 
or  to  do  any  particular  thing,  or  all  things, 
that  the  public  necessity  may  require. 

We  citizens  may  as  well  get  ourselves  in 
readiness  to  abstain  from  eating  food,  drink- 
ing water  or  milk  or  any  other  fluid,  or  from 


PARTS  OF  THE  SAME  THING          21 

doing  any  and  every  thing  that  may  be  con- 
demned by  public  necessity;  and  also  hold 
ourselves  in  readiness  to  drink  lime  juice,  eat 
onions,  or  any  other  specific,  or  do  anything 
that  may  be  required  of  us  by  the  law  of  public 
necessity. 

In  Town  of  Lake  View  vs.  Rose  Hill  Ceme- 
tery Co.,  the  Supreme  Court  of  Illinois  defined 
the  police  power  to  be:  "The  law  of  overrul- 
ing necessity."  70  111.,  R.  191.  This  brief 
definition  of  police  power  is  fully  sustained  by 
authority. 

Some  one  may  say  that  if  these  propositions 
of  law  were  correct,  then  civil  government,  at 
best,  is  legalized  tyranny.  Let  us  not  misap- 
prehend the  effect  of  these  propositions;  let 
us  bear  in  mind  that  the  government  must  seek 
to  promote  the  public  welfare.  In  so  doing, 
hardships  may  sometimes  come  to  the  inno- 
cent, and  of  necessity  transgressors  must  be 
treated  as  outlaws,  and  pursued  with  relentless 
justice,  that  civil  government,  public  health, 
public  peace,  morality,  and  good  order  may  be 
protected;  that  the  weak  may  be  sheltered 
from  the  oppressor ;  that  good  citizenship  may 
be  encouraged  and  bad  citizenship  suppressed. 

In  this  chapter  I  have  been  endeavoring  to 
present  the  rigid  rules  and  extreme  require- 
ments of  the  law  of  public  necessity.  I  have 
done  this  to  meet  the  prating  on  personal 


22        MORAL  LAW  AND  CIVIL  LAW 

liberty  and  individual  rights  so  common  in 
the  mouths  of  American  citizens  with  foreign 
ideas,  and  of  political  demagogues  for  personal 
ends.  It  is  remarkable  and  amazing  that  these 
classes  of  persons  have  had  such  influence  as 
to  secure  large  acquiescence  in  their  claims, 
and  such  hesitancy  in  exposing  their  fallacies. 
It  should  be  borne  in  mind  that  rules  of  law 
are  founded  on  the  same  principle  as  a  yard- 
stick, the  bushel  measure,  and  scales.  It  may 
be  a  great  restraint  sometimes  on  personal 
liberty  and  individual  rights  to  give  thirty-six 
inches  for  a  yard,  full  measure  for  a  bushel, 
twelve  or  sixteen  ounces  for  a  pound,  or  to 
regard  the  golden  rule  as  a  citizen,  but  the 
requirement  and  the  obligation  cannot  yield 
to  accommodate  the  ignorance,  whim,  or  vice 
of  the  individual.  The  observance  of  these 
things  is  the  pleasure  of  the  honest  man  and 
the  good  citizen.  The  intelligent  and  the  pa- 
triotic man  will  not  be  misled  by  false  state- 
ments as  to  facts,  nor  fallacious  arguments, 
nor  expect  good  results  from  the  application  of 
false  principles. 


PARTS  OF  THE  SAME  THING          23 


CHAPTER  II. 

Morality  Is  a  Fundamental  Principle  In  Civil 
Government. 

I  HAVE  attempted  to  show  in  the  former 
chapter  that  public  necessity  is  law.  If 
there  were  no  necessity  for  law  there 
would  be  no  law.  This  is  true  both  as  to  mor- 
al and  civil  law.  The  term,  civil  law,  is  used 
for  convenience,  intending  thereby  in  this  work 
to  comprehend  civil  and  criminal  law  under 
the  same  head.  There  is  no  place  nor  condi- 
tion where  moral  law  does  not  obtain,  and 
there  is  no  place  nor  condition  where  the  duty 
is  to  civil  law  only.  The  greatest  object  and 
purpose  of  civil  government  under  our  civil- 
ization is  to  promote  and  enforce  good  morals 
in  the  transactions  and  relations  of  its  citizens. 
In  carrying  out  the  necessities  of  government 
and  working  out  the  principles  of  public  ne- 
cessity, morality  is  made  a  fundamental  prin- 
ciple. Upon  this  proposition  I  quote  the  con- 
stitutional provisions  that  have  been  adopted 
by  many  of  the  States  of  the  United  States. 


24        MORAL  LAW  AND  CIVIL  LAW 

In  the  Constitution  of  Indiana,  1851,  Art. 
8,  Sec.  i,  is  as  follows: 

"Knowledge  and  learning  generally  dif- 
fused throughout  the  community  being  essen- 
tial to  the  preservation  of  free  government,  it 
shall  be  the  duty  of  the  General  Assembly  to 
encourage,  by  all  suitable  means,  moral,  in- 
tellectual, scientific,  and  agricultural  improve- 
ments, and  to  provide  by  law  for  a  general 
and  uniform  system  of  common  schools,  where 
tuition  shall  be  without  charge  and  equally 
open  to  all." 

Arkansas.  Art.  2,  Sec.  25,  Constitution 
1874: 

"Religion,  morality,  and  knowledge  being 
essential  to  good  government,  the  General  As- 
sembly shall  enact  suitable  laws  to  protect 
every  religious  denomination  in  the  peaceable 
enjoyment  of  its  own  mode  of  public  wor- 
ship." 

California.    Art.  9,  Sec.  i,  Constitution  1879: 

"A  general  diffusion  of  knowledge  and  in- 
telligence being  essential  to  the  preservation 
of  the  rights  and  liberties  of  the  people,  the 
Legislature  shall  encourage  by  all  suitable 
means  the  promotion  of  intellectual,  scientific, 
and  agricultural  improvements." 

Connecticut.  Art.  7,  Sec.  I,  Constitution 
1818: 

"It  being  the  duty  of  all  men  to  worship 


PARTS  OF  THE  SAME  THING          25 

the  Supreme  Being,  the  great  Creator  and 
Preserver  of  the  universe,  and  their  right  to 
render  that  worship  in  the  mode  most  consist- 
ent with  the  dictates  of  their  consciences,  no 
person  shall  by  law  be  compelled  to  join  or 
support,"  etc. 

North  Dakota.  Art.  8,  Sec.  147,  Constitu- 
tion 1869: 

"A  high  degree  of  intelligence,  patriotism, 
integrity,  and  morality  on  the  part  of  every 
voter  in  a  government  by  the  people  being  ne- 
cessary in  order  to  secure  the  continuance  of 
that  government  and  the  prosperity  and  hap- 
piness of  the  people,  the  Legislative  Assembly 
shall  make  provision  for  the  establishment  and 
maintenance  of  a  system  of  public  schools 
which  shall  be  opened  to  all  children  of  the 
State  of  North  Dakota,  and  free  from  sectarian 
control." 

Sec.  149:  "In  all  schools  instruction  shall 
be  given  as  far  as  practicable  in  those  branches 
of  knowledge  that  tend  to  impress  upon  the 
mind  the  vital  importance  of  truthfulness, 
temperance,  purity,  public  spirit,  and  respect 
for  honest  labor  of  every  kind." 

Delaware.    Art.  I,  Sec.  I,  Constitution  1831 : 

"Although  it  is  the  duty  of  all  men  frequent- 
ly to  assemble  together  for  the  public  worship 
of  the  Author  of  the  universe,  and  piety  and 
morality,  on  which  the  prosperity  of  commu- 


26        MORAL  LAW  AND  CIVIL  LAW 

nities  depends,  are  thereby  promoted,  yet  no 
man  shall  or  ought  to  be  compelled  to  attend 
any  religious  worship,  to  contribute  against 
his  own  free  will  and  consent." 

Florida.  Sec.  5,  Declaration  of  Rights,  Con- 
stitution 1885: 

"The  free  exercise  and  enjoyment  of  religious 
professions  and  worship  shall  forever  be  al- 
lowed in  this  State,  and  no  person  shall  be 
rendered  incompetent  as  a  witness  on  account 
of  his  religious  opinions;  but  the  liberty  of 
conscience  hereby  secured  shall  not  be  so  con- 
strued as  to  justify  licentiousness  or  practices 
subversive  of,  or  inconsistent  with,  the  peace 
or  moral  safety  of  the  State  or  society." 

Kansas.     Art.  6,  Sec.  2,  Constitution  1859: 

"The  Legislature  shall  encourage  the  pro- 
motion of  intellectual,  moral,  scientific,  and 
agricultural  improvement,  by  establishing  a 
uniform  system  of  common  schools,  and 
schools  of  a  higher  grade,  embracing  normal, 
preparatory,  collegiate,  and  university  depart- 
ments." 

Maryland.  Art.  43,  Declaration  of  Rights 
1867: 

"That  the  Legislature  ought  to  encourage 
the  diffusion  of  knowledge  and  virtue,  the  ex- 
tension of  a  judicial  system  of  general  educa- 
tion, the  promotion  of  literature,  the  arts, 
sciences,  agriculture,  commerce,  and  manu- 


PARTS  OF  THE  SAME  THING          27 

factures,  and  the  general  amelioration  of  the 
condition  of  the  people." 

Art.  30  provides  that  no  person  shall  be  mo- 
lested on  account  of  his  religious  profession, 
"unless  under  the  color  of  religion  he  shall 
disturb  the  good  order,  peace,  or  safety  of  the 
State,  or  shall  infringe  the  laws  of  morality." 

Massachusetts.  Art.  n  of  the  Amendments, 
Declaration  of  Rights : 

"As  the  public  worship  of  God  and  instruc- 
tion in  piety,  religion,  and  morality  promote 
the  happiness  and  prosperity  of  a  people  and 
the  security  of  a  republican  government,  there- 
fore the  several  religious  societies  of  the  com- 
monwealth shall  have  the  right  to  elect  their 
pastors,  contract  with  them  for  their  support, 
raise  money  to  erect  and  repair  houses  of  wor- 
ship," etc. 

Art.  18,  Declaration  of  Rights: 

"A  frequent  recurrence  to  the  fundamental 
principles  of  the  Constitution,  and  a  constant 
adherence  to  those  of  piety,  justice,  modera- 
tion, temperance,  industry  and  frugality,  are 
absolutely  necessary  to  preserve  the  advan- 
tages of  liberty  and  to  maintain  a  free  govern- 
ment. The  people  ought,  consequently,  to  have 
a  particular  attention  to  all  those  principles  in 
the  choice  of  their  officers  and  representatives, 
and  they  have  a  right  to  require  of  their  law 
givers  and  magistrates  an  exact  and  constant 


28        MORAL  LAW  AND  CIVIL  LAW 

observance  of  them  in  the  formation  and  exe- 
cution of  the  laws  necessary  for  the  adminis- 
tration of  the  commonwealth." 

Chap.  5  of  the  Constitution,  Sec.  2: 

"Wisdom  and  knowledge,  as  well  as  vir- 
tue, diffused  generally  among  the  body  of  the 
people,  being  necessary  for  the  preservation 
of  their  rights  and  liberties,  and  as  these  de- 
pend on  spreading  the  opportunities  and  ad- 
vantages of  education  in  the  various  parts  of 
the  country  and  among  the  different  orders  of 
the  people,  it  shall  be  the  duty  of  the  Legisla- 
tures and  magistrates  to  cherish  the  interests 
of  literature  and  the  sciences,  ...  to 
countenance  and  inculcate  the  principles  o* 
humanity  and  general  benevolence,  public  and 
private  charity,  industry  and  frugality,  hon- 
esty and  punctuality  in  their  dealings,  sin- 
cerity, good  humor,  and  all  social  affections  and 
generous  sentiments  among  the  people." 

Michigan.  Art.  13,  Sec.  n,  Constitution 
1850: 

"The  Legislature  shall  encourage  the  pro- 
motion of  intellectual,  scientific,  and  agricul- 
tural improvements.  .  .  ." 

Mississippi.  Art.  8,  Sec.  201,  Constitution 
1890: 

"It  shall  be  the  duty  of  the  Legislature  to 
encourage  by  all  suitable  means  the  promo- 
tion of  intellectual,  scientific,  moral,  and  agri- 


PARTS  OF  THE  SAME  THING          29 

cultural  improvement,  by  establishing  a  uni- 
form system  of  free  public  schools,  by  taxa- 
tion or  otherwise,  for  all  children  between 
the  ages  of  five  and  twenty-one  years,  and  as 
soon  as  practicable  to  establish  schools  of  high- 
er grade." 

Missouri.  Art.  n,  Sec.  i,  Constitution  1875: 
"A  general  diffusion  of  knowledge  and  in- 
telligence being  essential  to  the  preservation 
and  the  rights  and  liberties  of  the  people,  the 
General  Assembly  shall  establish  public 
schools." 

Nebraska.  Art.  I,  Sec.  4,  Constitution  1875: 
"All  persons  have  a  natural  and  indefeasible 
right  to  worship  Almighty  God  according  to 
the  dictates  of  their  own  consciences.  No 
person  shall  be  compelled  to  attend,  erect," 
etc.  "Religion,  morality,  and  knowledge, 
however,  being  essential  to  good  government, 
it  shall  be  the  duty  of  the  Legislature  to  pass 
suitable  laws  to  protect  every  religious  de- 
nomination in  the  peaceable  enjoyment  of  its 
own  mode  of  public  worship,  and  to  encourage 
schools  and  the  means  of  instruction." 
New  Hampshire.  Art.  6,  Bill  of  Rights: 
"As  morality  and  piety  rightly  grounded 
on  evangelical  principles  will  give  the  best 
and  greatest  security  to  government,  and  will 
lay  on  the  hearts  of  men  the  strongest  obliga- 
tions to  due  subjection,  .  .  .  the  people 


30        MORAL  LAW  AND  CIVIL  LAW 

of  the  State  have  a  right  to  empower,  and  do 
hereby  fully  empower,  the  Legislature  to  au- 
thorize from  time  to  time  the  several  towns, 
parishes,  bodies  corporate,  or  religious  socie- 
ties within  this  State,  to  make  adequate  pro- 
vision for  the  support  and  maintenance  of 
public  Protestant  teachers  of  piety,  religion, 
and  morality." 

North  Carolina.    Art.  I,  Sec.  29: 

"A  frequent  recurrence  to  fundamental  prin- 
ciples is  absolutely  necessary  to  preserve  the 
blessings  of  liberty." 

Art.  9,  Sec.  i : 

"Religion,  morality,  and  knowledge  being 
necessary  to  good  government  and  the  happi- 
ness of  mankind,  schools  and  means  of  educa- 
tion should  forever  be  encouraged." 

Ohio.    Art.  I,  Sec.  7,  Constitution  1851: 

".  .  .  Religion,  morality,  and  knowledge, 
however,  being  essential  to  good  government, 
it  shall  be  the  duty  of  the  General  Assembly 
to  pass  suitable  laws  to  protect  every  religious 
denomination  in  the  peaceable  enjoyment  of 
its  own  mode  of  public  worship,  and  to  en- 
courage schools  and  the  means  of  instruction." 

Rhode  Island.  Art.  12,  Sec.  I,  Constitution 
1842: 

"The  diffusion  of  knowledge,  as  well  as  of 
virtue,  among  the  people  being  essential  to 
the  preservation  of  their  rights  and  liberties,  it 


PARTS  OF  THE  SAME  THING          31 

shall  be  the  duty  of  the  General  Assembly 
to  promote  public  schools,  and  to  adopt  all 
means  which  they  may  deem  to  be  necessary 
and  proper  to  secure  to  the  people  the  advan- 
tages and  opportunities  of  education." 

Tennessee.     Art.    n,   Sec.    12,   Constitution 
1870: 

"Knowledge,  learning,  and  virtue  being  es- 
sential to  the  preservation  of  republican  insti- 
tutions, and  the  diffusion  of  the  opportunities 
and  advantages  of  education  throughout  the 
different  portions  of  the  State  being  highly 
conducive  to  the  promotion  of  this  end,  it  shall 
be  the  duty  of  the  General  Assembly,  in  all  fu- 
ture periods  of  this  government,  to  cherish 
literature  and  science.  .  .  ." 
Vermont.  Chap.  I,  Art.  3,  1793: 
".  .  .  Nevertheless,  every  sect  or  denom- 
ination of  Christians  ought  to  observe  the  Sab- 
bath or  Lord's  Day,  and  keep  up  some  sort  of 
religious  worship,  which  to  them  shall  seem 
the  most  agreeable  to  the  revealed  will  of 
God." 

Virginia.  Art.  I,  Sec.  17,  Bill  of  Rights: 
"That  no  free  government  nor  the  blessing 
of  liberty  can  be  preserved  to  any  people  but 
by  a  firm  adherence  to  justice,  moderation, 
temperance,  and  virtue,  and  by  a  frequent  re- 
currence to  fundamental  principles." 


32        MORAL  LAW  AND  CIVIL  LAW 

Sec.  18: 

"That  religion,  or  the  duty  which  we  owe 
to  our  Creator,  and  the  manner  of  discharging 
it  can  be  directed  only  by  reason  and  convic- 
tion, not  by  force  or  violence;  and,  therefore, 
all  men  are  entitled  to  the  free  exercise  of  re- 
ligion, according  to  the  dictates  of  their  con- 
sciences, and  that  it  is  the  duty  of  all  to  prac- 
tice Christian  forbearance,  love,  and  charity 
toward  each  other." 

West  Virginia.  Art.  3,  Sec.  20,  Bill  of 
Rights  1872: 

"Free  government  and  the  blessings  of  lib- 
erty can  be  preserved  to  any  people  only  by 
a  firm  adherance  to  justice,  moderation,  tem- 
perance, frugality,  and  virtue,  and  by  a  fre- 
quent recurrence  to  fundamental  principles." 

Art.  12,  Sec.  12: 

"The  Legislature  shall  foster  and  encour- 
age moral,  intellectual,  scientific,  and  agricul- 
tural improvement,  .  .  ." 

In  the  States  where  neither  morality  nor 
education  are  specifically  referred  to  in  their 
constitutional  provisions,  these  matters  are 
nevertheless  recognized  by  legislative  acts  and 
by  decisions  of  their  courts  as  fundamental. 
Kentucky  has  no  constitutional  specification 
as  to  morality,  but  morality  is,  nevertheless, 
in  her  fundamental  law.  I  cite  a  case  in  Ken- 
tucky to  this  effect. 


PARTS  OF  THE  SAME  THING         33 

The   Commonwealth  vs.   Douglas,   100  Ky. 
1 16,  affirmed  i68U.  S.  488.    I  quote: 

"When    we    consider   that   honesty,    moral- 
ity, religion,  and  education  are  the  main  pil- 
lars of  the  State,  and  for  the  protection  and 
promotion  of  which  government  was  institut- 
ed among  men,  it  at  once  strikes  the  mind  that 
the  government,  through  its  agencies,  cannot- 
throw  off  these  trust  duties  by  selling,  barter- 
ing, or  giving  them  away.     The  preservation 
of  the  trust  is  essential  to  the  happiness  and 
welfare  of  the  beneficiaries,  which  the  trus- 
be  conceded  that  the  State  can  give,  sell,  and 
tees  have  no  power  to  sell  or  give  away.    If  it 
barter  any  one  of  them,  it  follows  that  it  can 
thus  surrender  its  control  of  all,  and  convert 
the  State  into  dens  of  bawdy  houses,  gambl- 
ing shops,  and  other  places  of  vice  and  de- 
moralization, provided  the  grantees  paid  for 
the  privileges,  and  thus  deprive  the  State  of 
its  power  to  repeal  the  grants  and  all  control 
of  the  subjects,  as  far  as  the  grantees  are  con- 
cerned; and  the  trust  duty  of  fostering  and 
protecting   the   honesty,    health,    order,    and 
good  morals  of  the  State  would  be  cast  to  the 
winds,  and  vice  and  crime  would  triumph  in 
their  stead.     Now,  it  seems  to  us  that  the  es- 
sential   principles    of    self-preservation    forbid 
that  the  commonwealth  should  possess  a  pow- 


34        MORAL  LAW  AND  CIVIL  LAW 

er  so  revolting,  because  destructive  of  the 
main  pillars  of  government.  .  .  ." 

The  State  of  New  York  also  has  no  specific 
provision  in  her  Constitution  upon  the  sub- 
ject of  morality,  but  in  the  case  of  Stanton 
vs.  Allen,  5  Denio  (New  York  Report),  434, 
the  Court  of  Appeals  in  that  State,  said :  ".  . 
.  .  Sound  morality  is  the  corner  stone  of 
the  social  edifice — whatever  disturbs  that  is 
condemned  -ander  the  fundamental  rule." 
These  citations  will  be  sufficient  upon  this 
matter,  as  I  think  there  will  be  no  contro- 
versy upon  this  subject.  The  United  States 
Supreme  Court,  speaking  by  Chief  Justice 
John  Marshall,  said:  "The  mere  act  of  in- 
stituting a  state  government  adopts,  without 
reducing  them  to  writing,  those  general,  legal 
principles  necessary  to  secure  the  safety  and 
authority  of  the  state  as  a  body  politic  and  to 
preserve  its  constituent  members  in  safety, 
peace,  health  and  morality,  and  these  general 
unwritten,  legal  principles  constitute  the  com- 
mon law." 

While  Justinian  the  Great  was  Emperor  of 
Rome,  about  A.  D.  530,  he  called  to  his  aid 
a  number  of  men  of  the  highest  legal  learning 
of  his  time,  and  undertook  to  compile  and  de- 
fine the  principles  of  law  then  recognized  by  his 
government.  He  did  more  than  all  other  men 
in  the  history  of  that  great  empire  for  the  es- 


PARTS  OF  THE  SAME  THING          35 

tablishment  of  sound  legal  principles.  In 
describing  the  work  he  undertook  and  accom- 
plished, he  says : 

"When,  therefore,  by  the  assistance  of  the 
same  eminent  person,  Tribonian,  and  that  of 
other  illustrious  and  learned  men,  we  had 
compiled  the  fifty  books,  called  Digests  or 
Pandects,  in  which  is  collected  the  whole 
ancient  law,  we  directed  that  these  institu- 
tions should  be  divided  into  four  books,  which 
might  serve  as  the  first  elements  of  the  whole 
science  of  law. 

"In  these  books  a  brief  exposition  is  given 
of  the  ancient  laws,  and  of  those  also  which, 
overshadowed  by  disuse,  have  been  again 
brought  to  light  by  our  imperial  authority. 

"These  four  books  of  institute  thus  com- 
piled from  all  the  institutes  left  us  by  the 
ancients,  and  chiefly  from  the  commentaries 
of  our  Gains,  both  from  his  institute  and  his 
journal,  and  also  from  many  other  commen- 
taries, were  presented  to  us  by  the  three 
learned  men  we  have  above  named.  We  read 
and  examined  them,  and  have  accorded  to 
them  all  the  force  of  our  constitutions. 

"Receive,  therefore,  with  eagerness,  and 
study  with  cheerful  diligence,  these,  our  laws, 
and  show  yourself  persons  of  such  learning 
that  you  may  conceive  the  flattering  hope  of 
yourselves  being  able,  when  your  course  of 


36        MORAL  LAW  AND  CIVIL  LAW 

legal  study  is  completed,  to  govern  our  em- 
pire in  the  different  portions  that  may  be  in- 
trusted to  your  care/' 

Justinian's  first  definition  is  as  follows: 
"Jurisprudence  is  the  knowledge  of  things  di- 
vine and  human;  the  science  of  the  just  and 
the  unjust." 

In  Paragraph  3,  of  Book  I,  he  says:  "The 
maxims  of  the  law  are  these :  to  live  honestly ; 
to  hurt  no  one ;  to  give  everyone  his  due." 

His  whole  system  of  laws  was  founded 
upon  these  principles. 

Blackstone,  about  one  hundred  and  twenty- 
five  years  ago,  undertook  the  great  work,  in 
imitation  of  Justinian,  of  compiling  legal  prin- 
ciples as  recognized  in  the  jurisprudence  of 
England.  In  laying  down  the  foundations 
of  his  work,  using  the  terms  "Law  of  Nature" 
and  "Ethics"  in  the  sense  of  moral  law,  he 
speaks  as  follows: 

"This  will  of  his  Maker  is  called  the  law 
of  nature.  For  as  God,  when  he  created  mat- 
ter and  endued  it  with  a  principle  of  mobility, 
established  certain  rules  for  the  perpetual  di- 
rection of  that  motion;  so,  when  he  created 
man  and  endued  him  with  free  will  to  con- 
duct himself  in  all  parts  of  life,  he  laid  down 
certain  immutable  laws  of  human  nature 
whereby  that  free  will  is  in  some  degrees  regu- 
lated and  restrained,  and  gave  him  also  the 


PARTS  OF  THE  SAME  THING          37 

faculty  of  reason  to  discover  the  purport  of 
those  laws. 

"Considering  the  Creator  only  as  a  being 
of  infinite  power,  he  was  able,  unquestionably, 
to  have  prescribed  whatever  laws  he  pleased 
to  his  creature,  man,  however  unjust  or  se- 
vere. But,  as  he  is  also  a  being  of  infinite 
wisdom,  he  has  laid  down  only  such  laws  as 
n*ere  founded  in  those  relations  of  justice  that 
existed  in  the  natures  of  things  antecedent 
to  any  positive  precept.  These  are  the  eter- 
nal, immutable  laws  of  good  and  evil,  to  which 
the  Creator  himself  in  all  his  dispensations 
conforms;  and  which  he  has  enabled  human 
reason  to  discover,  so  far  as  they  are  neces- 
sary for  the  conduct  of  human  actions.  Such 
among  others,  are  these  principles:  that  we 
should  live  honestly,  should  hurt  nobody,  and 
should  render  to  everyone  his  due ;  to  which 
three  general  precepts  Justinian  has  reduced 
the  whole  doctrine  of  law. 

"But  if  the  discovery  of  these  first  prin- 
ciples of  the  law  of  nature  depended  only 
upon  the  due  exertion  of  right  reason,  and 
could  not  otherwise  be  obtained  than  by  a 
chain  of  metaphysical  disquisitions,  mankind 
would  have  wanted  some  inducement  to  have 
quickened  their  inquiries,  and  the  greater 
part  of  the  world  would  have  rested  content 
in  mental  indolence  and  ignorance,  its  insep- 


38        MORAL  LAW  AND  CIVIL  LAW 

arable  companion.  As,  therefore,  the  Creator, 
is  a  being,  not  only  of  infinite  power  and  wis- 
dom, but  also  of  infinite  goodness,  he  has  been 
pleased  so  to  contrive  the  constitution  and 
frame  of  humanity  that  we  should  want  no 
other  prompter  to  inquire  after  and  pursue 
the  rule  of  right,  but  only  our  self-love,  that 
universal  principle  of  action;  for  he  has  so 
intimately  connected,  so  inseparably  inter- 
woven, the  laws  of  eternal  justice  with  the 
happiness  of  each  individual  that  the  latter 
cannot  be  obtained  but  by  observing  the  form- 
er; and  if  the  former  be  punctually  obeyed 
it  cannot  but  induce  the  latter.  In  conse- 
quence of  which  mutual  connection  of  justice 
and  human  felicity  he  has  not  perplexed  the 
law  of  nature  with  a  multitude  of  abstract 
rules  and  precepts,  referring  merely  to  the  fit- 
ness or  unfitness  of  things,  as  some  have  vain- 
ly surmised;  but  has  graciously  reduced  the 
rule  of  obedience  to  this  one  paternal  pre- 
cept, 'that  man  should  pursue  his  own  true 
and  substantial  happiness.'  This  is  the  foun- 
dation of  what  we  call  ethics  (morality),  or 
natural  law.  For  the  several  articles  into 
which  it  is  branched  in  our  system  amount 
to  no  more  than  demonstrating  that  this  or 
that  action  tends  to  man's  real  happiness,  and, 
therefore,  very  justly  concluding  that  the  per- 
formance of  it  as  a  part  of  the  law  of  nature; 


PARTS  OF  THE  SAME  THING          39 

or,  on  the  other  hand,  that  this  or  that  action 
is  destructive  of  man's  real  happiness,  and, 
therefore,  that  the  law  of  nature  forbids  it." 

"This  law  of  nature,  being  coeval  with 
mankind  and  dictated  by  God  himself,  is,  of 
course,  superior  in  obligation  to  any  other. 
It  is  binding  all  over  the  globe,  in  all  coun- 
tries, and  at  all  times.  No  human  laws  are 
of  any  validity  if  contrary  to  this;  and  such 
of  them  as  are  valid  derive  all  their  force  and 
all  their  authority,  mediately  or  immeditely, 
from  this  original." 

Chancellor  Kent,  the  distinguished  Ameri- 
can commentator  and  law  writer,  begins  his 
commentaries  with  the  following  statement: 

"When  the  United  States  ceased  to  be  a 
part  of  the  British  empire,  and  assumed  the 
character  of  an  independent  nation,  they  be- 
came subject  to  that  system  of  rules  which 
reason,  morality,  and  custom  has  established 
among  the  civilized  nations  of  Europe.  .  .  . 

"We  ought  not,  therefore,  to  separate  the 
science  of  public  law  from  that  of  ethics  or 
morality,  nor  encourage  the  dangerous  sug- 
gestion that  governments  are  not  so  strictly 
bound  by  the  obligations  of  truth,  justice,  and 
humanity  in  relation  to  other  powers  as  they 
are  in  the  management  of  their  own  local 
concerns.  States,  or  bodies  politic,  are  to  be 
considered  as  moral  persons  having  a  public 


40        MORAL  LAW  AND  CIVIL  LAW 

will,  capable  and  free  to  do  right  and  wrong, 
inasmuch  as  they  are  collections  of  individuals, 
each  of  whom  carried  with  him  into  the  ser- 
vice of  the  community  the  same  binding  law  of 
morality  and  religion  which  ought  to  control 
his  conduct  in  private  life.  The  law  of  na- 
tions is  a  complex  system  composed  of  various 
ingredients.  It  consists  of  general  principles 
of  right  and  justice,  equally  suitable  to  the 
government  of  individuals  in  a  state  of  natural 
equality  and  to  the  relation  and  conduct  of 
nations;  of  a  collection  of  usages,  customs, 
and  opinions  the  growth  of  civilization  and 
commerce;  and  of  a  code  of  conventional  or 
positive  law.  In  the  absence  of  these  latter 
regulations  the  intercourse  and  conduct  of  na- 
tions are  to  be  governed  by  principles  fairly 
to  be  deduced  from  the  rights  and  duties  of 
nations  and  the  nature  of  moral  obligations ; 
and  we  have  the  authority  of  lawyers  of  an- 
tiquity, and  of  some  of  the  first  masters  in  the 
modern  schools  of  public  law,  for  placing  the 
moral  obligations  of  nations  and  of  individ- 
uals on  similar  grounds,  and  for  considering 
individual  and  national  morality  as  parts  of 
one  and  the  same  science." 

Sheldon  Amos,  M.  A.,  Professor  of  Juris- 
prudence in  the  University  College,  London, 
Tutor  to  the  Inner  Temple  of  Jurisprudence 
Civil  Law,  and  International  Law,  in  a  work 


PARTS  OF  THE  SAME  THING          41 

published  in  1872,  entitled  Systematic  View 
of  the  Science  of  Jurispudence,  Vol.  I,  page 
515,  says: 

"The  purpose  of  the  law  is  to  fortify  and 
to  maintain  public  morality,  and  not  to  create 
and  invent  it;  give  solidity  and  permanence 
to  the  essential  relationship  on  which  national 
life  depends,  and  not  to  be  the  formation  of 
their  vital  energy;  to  secure  for  every  man 
and  woman  for  the  creation  of  rights  and  du- 
ties a  clear  and  open  space  for  unrestricted 
action,  within  which  they  are  free  to  develop 
all  their  faculties  without  hindrance  or  in- 
trusion from  without;  and  to  uphold  the  se- 
curity of  such  institutions  as  the  voluntary 
efforts  of  mankind  may  devise  or  adopt,  as 
seems  to  them  best  calculated  to  quicken  or 
develop  or  invigorate  the  moral  aspirations  of 
the  race." 

Dr  Francis  Lieber  was  educated  and  re- 
ceived high  cultivation  in  the  schools  of 
France.  Among  other  works  was  his  Man- 
ual of  Political  Ethics  (morality),  which  he 
wrote  and  published  in  1878.  Chancellor 
Kent  says,  in  approval  of  this  work:  "Dr. 
Francis  Lieber,  in  his  Manual  of  Political 
Ethics,  has  shown  with  great  force,  and  by 
the  most  striking  and  apposite  illustrations, 
the  original  connections  between  right  and 
morality,  and  the  reason  and  the  necessity  for 


42        MORAL  LAW  AND  CIVIL  LAW 

the  application  of  the  principles  of  ethics 
(morality)  to  the  sciences  of  politics  and  ad- 
ministration of  government.  The  work  is  ex- 
cellent in  its  doctrines,  and  it  is  enriched  with 
various  and  profound  erudition." 

Bishop,  for  thirty  years  recognized  in  the 
United  States  as  a  standard  authority  on  crim- 
inal law,  in  his  work  on  that  subject  says, 
Sec.  495:  "Morality,  religion,  and  education 
are  the  three  main  pillars  of  the  State  and 
the  substance  of  all  private  good.  A  commu- 
nity from  which  they  are  banished  represents 
more  than  the  gloom  of  original  chaos.  There 
fore,  they  should  be  objects  of  primary  regard 
by  the  law." 

Also,  Sec.  500:  "But  however  uncertain 
may  be  the  precise  extent  to  which  the  com- 
mon law  protects  Christianity,  there  is  no 
question  that  it  practically  and  fully  cherishes 
the  public  morals.  And  it  punishes  as  a 
crime  every  act  which  it  deems  sufficiently 
evil  and  direct,  tending  to  impair  the  public 
morals." 

The  same  author,  in  his  works  on  contracts, 
enlarged  edition,  Sec.  505,  says:  "Prominent 
among  the  interests  which  the  law  protects 
are  the  public  morals." 

The  legal  authorities  here  cited  upon  this 
proposition  are  taken  from  the  various  pe- 
riods of  history  reaching  back  to  the  begin- 


PARTS  OF  THE  SAME  THING          43 

ning  of  the  Christian  era,  and  also  univer- 
sally recognized  as  the  leading  authorities 
upon  law  and  jurispudence.  I  might  add  a 
large  number  and  quote  volumes  to  the  same 
effect,  but  for  the  purposes  of  this  work  must 
content  myself  with  the  support  thus  given 
to  the  proposition  that  morality  is  a  funda- 
mental principle  of  civil  government.  I  haz- 
ard nothing  by  saying  that  no  legal  authority 
of  respectable  standing  can  be  found  to  the 
contrary. 


PARTS  OF  THE  SAME  THING          45 


CHAPTER   III. 
What  Is  Morality? 

exists  in  the  public  mind  and  the 
J_  legal  profession  uncertainty  concerning 
the  meaning  of  the  word  "morality/'  in 
civil  law.  There  are  very  few  attorneys,  what- 
ever may  be  the  length  of  their  experience  or 
their  standing  in  the  profession,  who  would 
answer  without  hesitation  or  with  confidence 
the  question,  What  does  the  law  mean  by  the 
word  morality?  It  is  most  remarkable  that  a 
word  so  familiar,  as  old  as  the  language,  which 
is  a  translation  of  Latin  and  Greek  terms,  ex- 
tending beyond  the  Christian  era,  a  word 
which  is  used  for  the  foundation  stone  of  civil 
government,  should  convey  so  vague  and  un- 
certain an  idea  to  the  public  mind.  This  fa- 
miliar word  evidently  has  some  meaning,  rep- 
resents some  great  and  indispensable  principle, 
is  of  the  greatest  importance,  or  else  it  would 
not  have  been  so  long  in  use  and  been  given 
such  remarkable  prominence  in  civil  affairs. 
There  is  a  very  large  and  influential  school  of 
political  teachers  who  insist  that  morality, 


46        MORAL  LAW  AND  CIVIL  LAW 

whatever  it  means,  should  not  be  connected  in 
any  way  with  politics  or  legislation,  asserting 
that  men  cannot  be  made  moral  by  legislation. 
On  the  other  hand  there  is  a  very  large  and 
influential  school  which  teaches  that  morality 
and  religion  are  the  same  thing,  who  believe 
in  the  union  of  Church  and  State,  and  that 
politics  and  legislation  should  provide  for  and 
control  matters  of  religion.  It  will  not  be  con- 
troverted that  civil  governments  must  con- 
template, as  do  these  United  States,  the  pro- 
tection of  liberty  in  religious  belief,  and  en- 
courage religious  worship  as  they  do  education 
and  other  subjects  for  the  purpose  of  good  in- 
fluence that  come  from  these  things.  These 
civil  governments,  however,  cannot  define  and 
favor,  or  control,  or  restrict,  any  special  form 
of  religious  worship  or  belief.  I  am  convinced 
that  there  is  a  general  and  prevailing  uncer- 
tainty among  the  masses  of  people  as  to  the 
distinction  between  matters  of  religion  and 
morality.  Out  of  this  uncertainty  comes  a 
very  dangerous  sentiment  creating  the  impres- 
sion that  as  civil  government  cannot  enforce 
matters  of  religion  and  forms  of  religious  wor- 
ship, it  cannot  enforce  matters  of  morality  and 
moral  conduct. 

Let  me  attempt  to  simplify  from  a  legal 
standpoint  the  difference  between  religion  and 
morality.  Religion  refers  to  the  inner  indi- 


PARTS  OF  THE  SAME  THING          47 

vidual  life  and  belief.  Religion  requires  that 
a  man  should  love  his  neighbor  as  himself,  but 
the  civil  law  cannot  compel  him  to  do  so,  nor 
punish  him  if  he  does  not.  Morality  requires 
a  man  to  treat  his  neighbor  honestly  and 
fairly,  and  can  compel  him  to  do  so,  and  punish 
him  if  he  does  not.  Religion  is  a  matter  of  be- 
lief; morality  is  a  matter  of  conduct.  The 
law  does  not  interfere  with  matters  of  belief, 
but  does  undertake  to  control  matter  of  con- 
duct. The  legal  distinction  between  religion 
and  morality  is  thus  clearly  presented  without 
further  discussion,  so  that  no  man  need  go 
astray.  The  words  virtue,  utility,  ethics,  and 
especially  the  latter,  have  been  largely  con- 
sidered and  made  subjects  of  many  books, 
and  have  occupied  the  time  and  attention  of 
great  minds.  In  recent  years  the  word  "altru- 
ism" has  been  suggestive  as  a  theme  for  great 
attention  and  the  expression  of  beautiful  ideas. 
The  science  of  sociology  is  attracting  wide  at- 
tention and  consideration.  There  seems  to  be 
a  general  timidity  and  hesitation  in  the  use 
of  the  word  morality  and  the  consideration  of 
its  scope  and  application.  Upon  careful  con- 
sideration of  all  that  has  been  written  and 
said,  and  is  being  written  and  said,  about  this 
word  and  many  words  of  like  import,  it  will 
be  seen  that  what  is,  in  the  main,  contemplated 
and  discussed  under  each  and  all  of  these 


48        MORAL  LAW  AND  CIVIL  LAW 

names  is  the  simple,  common,  old-fashioned 
subject  of  morality,  nothing  more,  but  often 
something  less.  Why  hunt  for  terms  or  words, 
why  confuse  counsel,  why  attempt  to  weaken 
the  force  of  the  good  old  word  morality,  by 
using  vague,  uncertain,  feebler  terms,  that 
have  never  had,  and  never  can  have,  a  fixed 
and  settled  meaning?  I  come  to  plead  for  a 
fixed  science,  and  no  vagary. 

Paley,  in  his  work  on  Moral  and  Political 
Philosophy,  written  more  than  one  hundred 
years  ago,  begins  with  the  first  sentence  as 
follows:  "Moral  philosophy,  morality,  ethics, 
and  natural  law  mean  all  the  same  thing;  that 
science  which  teaches  men  their  duty  and  the 
reason  of  it." 

I  have  gone  through  many  volumes  written 
upon  the  subjects  just  referred  to,  seeking  for 
a  concise  definition  of  morality,  or  the  defini- 
tion of  its  synonyms.  I  find  these  writers  ad- 
mitting great  difficulty  in  giving  a  definition. 
I  find  them  analyzing  the  word,  considering 
its  component  elements,  and  devoting  much 
time  to  each  of  these,  taking  the  word  to 
pieces,  and  spending  much  time  in  defining, 
specifying,  and  explaining  the  nature  and  of- 
fice of  the  pieces,  and  I  must  admit  great  dis- 
appointment in  finding  that  they  fail  to  put  the 
pieces  back  together,  and  tell  us  what  the 
structure  is.  They  give  the  component  parts, 


PARTS  OF  THE  SAME  THING         49 

but  not  the  composition.  If  morality  is  a 
foundation  stone  or  a  pillar  in  the  construction 
of  the  State,  we  certainly  can  lay  our  hands 
upon  that  corner  stone  or  upon  that  pillar. 
The  more  books  that  have  appeared  upon  this 
subject,  the  greater  the  uncertainty  in  the 
public  mind.  If  there  is  such  a  thing  as 
morality,  we  must  be  able  to  know  what  it  is. 
If  it  cannot  be  denned,  it  cannot  be  understood ; 
if  it  has  no  standard,  it  is  not  practical;  if  it 
cannot  be  identified,  it  is  a  myth.  Theologians 
confuse  it  with  religion,  and  lose  sight  of  it  in 
its  civil  character.  Philosophers  and  meta- 
physicians tear  it  to  pieces  and  fatigue  the 
life  out  of  it,  and  often  leave  it  so  disfigured 
that  its  best  friends  cannot  recognize  it.  We 
common  people  of  average  intelligence  want, 
and  must  have,  some  definition,  concise,  in 
plain  English  language,  of  this  great  subject 
that  we  can  understand.  We  common  people 
must  have  erected  in  our  midst  a  standard  to 
which  we  may  look  and  live,  while  we  and  our 
families  are  being  bitten  by  these  fiery  ser- 
pents that  are  everywhere  in  society.  It 
seems  to  me  in  this  great  emergency  we  must 
look  to  the  civil  law  for  information  and  relief. 
In  fact  that  is  the  source  from  which  the  in- 
formation should  and  must  come,  when  we 
seek  the  civil  and  legal  standard  of  morality. 
Let  it  be  borne  in  mind  that  morality  is  not 


50        MORAL  LAW  AND  CIVIL  LAW 

religion.  It  has  sometimes  been  said  that  men 
make  their  morality  their  religion,  and  expect 
to  be  saved  by  it.  In  such  a  case  morality  be- 
comes religion  to  the  individual,  and  in  it  and 
by  it  he  performs  his  acts  of  worship  of  some 
supreme  being.  Whether  he  can  be  saved 
thereby  is  no  part  of  the  subject  I  am  now 
considering.  Morality  is  for  this  life  only. 
Morality  is  purely  a  civil  condition ;  refers  to 
the  citizen,  to  the  individual  in  his  relations 
to  other  people  and  society. 

I  propound  the  hard  question,  if  it  is  so  un- 
derstood, for  the  purpose  of  answering  the 
same,  without  evasion  or  equivocation — What 
is  meant  in  Law  by  the  word  "Morality?" 

In  the  case  of  Lyon  vs.  Mitchell,  36th.  N.  Y., 
235,  the  Court  of  Appeals,  in  a  decision  on  a 
question  properly  before  it,  said :  "  'Morality 
is  the  rule  which  teaches  us  to  live  soberly  and 
honestly.  It  hath  four  chief  virtues — justice, 
prudence,  temperance,  and  fortitude/ 

"The  morals  of  the  time  may  be  vicious; 
public  sentiment  may  be  depraved ;  the  people 
may  have  gone  astray  so  that  not  one  good 
man  can  be  found.  Sound  morals,  as  taught 
by  the  wise  men  of  antiquity,  as  confirmed  by 
the  precepts  of  the  Gospel,  and  as  explained  by 
Paley  and  Home,  are  unchanged.  They  are 
the  same  yesterday  and  today." 

This  decision  has  been  cited  with  approval 


PARTS  OF  THE  SAME  THING          51 

in  New  York  a  number  of  times  and  in  subse- 
quent decisions,  and  has  never  been  criticised 
or  rejected  by  the  Supreme  Court  of  any  State, 
so  far  as  I  have  been  able  to  find. 

In  the  American  and  English  Encyclopedia 
of  Law,  Vol.  XV,  page  716,  this  definition  of 
morality  is  quoted  in  the  text  as  settled  law, 
and  this  case  is  cited. 

In  Leiber  on  Penal  Law,  2nd  Lieber's  Mis- 
cellaneous Works,  471,  the  author  says:  "At 
common  law,  indictability  and  immorality  are 
convertible  terms." 

In  Wharton's  Criminal  Law,  Vol.  i,  sec.  140, 
the  author  quotes  the  foregoing  expression 
from  Leiber,  and  modifies  slightly  the  claim 
of  Lieber  by  saying,  "There  are  some  immoral 
acts  which  are  not  indictable,  and  some  in- 
dictable acts  which  are  not  immoral;"  but  he 
says :  "If  we  were  required  to  supply  a  further 
test,  we  might  say  that  public  policy  demands 
the  indictability  of  all  immoral  acts  of  which 
punishment  by  law  is  the  proper  retribution." 

In  Wells'  Pollock  on  Torts,  American  Edi- 
tion, 1894,  page  12,  the  author  gives  as  the 
subject  of  a  paragraph,  "Relation  of  the  Law 
of  Torts  to  the  semiethical  precept,  'Alterum 
non  laedere'  ('Thou  shalt  do  no  harm  to  thy 
neighbor')." 

Discussing  this  subject,  he  says:  "We  have 
then  three  main  divisions  of  the  law  of  torts. 


52        MORAL  LAW  AND  CIVIL  LAW 

In  one  of  them,  which  may  be  said  to  have  a 
quasi  criminal  character,  there  is  a  very  strong 
ethical,  moral  element.  In  another  no  such 
element  is  apparent.  In  the  third  such  an  ele- 
ment is  present,  though  less,  and  manifestly 
so.  Can  we  find  any  category  of  human  duties 
that  will  approximately  cover  them  all,  and 
bring  them  into  relation  with  any  single  prin- 
ciple? Let  us  turn  to  one  of  the  best  known 
sentences  in  the  introductory  chapter  of  the 
Institutes  copied  from  a  lost  work  of  Ulpian : 
'Juris  percepta  sunt  haec;  honeste  vivere  al- 
terum  non  laedere,  suum  cuique  tribuere'— 
'The  maxims  of  the  law  are  these :  Thou  shalt 
live  honestly.  Thou  shalt  do  no  hurt  to  thy 
neighbor.  Thou  shalt  give  everyone  his  due* 
('Honeste  vivere').  'Thou  shalt  live  honestly* 
is  a  vague  phrase  enough.  It  may  mean  re- 
fraining from  criminal  offenses,  or  possibly 
good  behavior  in  social  and  family  relations 
('suum  cuique  tribuere5)  'Thou  shalt  give 
everyone  his  due'  seems  to  fit  pretty  well  with 
the  law  of  property  and  contract.  And  what 
of  'alterum  non  laedere?'  ('thou  shalt  do  no 
hurt  to  thy  neighbor.')  Our  law  of  torts,  with 
all  its  irregularities,  has  for  its  main  purpose 
nothing  less  than  the  development  of  this  pre- 
cept. This  exhibits  it,  no  doubt,  as  the  techni- 
cal working  out  of  a  moral  idea  by  a  positive 
law,  rather  than  the  systematic  application  of 


PARTS  OF  THE  SAME  THING          53 

any  distinctly  legal  conception.  But  all  posi- 
tive law  must  presuppose  a  moral  standpoint, 
and  at  times  more  or  less  openly  refer  to  it, 
and  the  more  so  in  proportion  as  it  has,  or  ap- 
proaches to  having,  a  penal  character." 

In  Law  of  Torts,  by  Piggott,  page  208,  on 
the  subject  of  frauds,  he  says:  "It  will  be 
noticed  that  we  have  ignored  the  distinction 
between  legal  and  moral  fraud  sometimes 
drawn.  'I  am  of  the  opinion/  said  Bromwell, 
L.  J.,  in  Weir  vs.  Bell  (3  ex.  D.,  243),  'that  to 
make  a  man  liable  for  fraud,  moral  fraud  must 
be  proved  against  him.  I  do  not  understand 
legal  fraud.  To  my  mind,  it  has  not  more 
meaning  than  legal  heat  or  legal  cold,  legal 
light  or  legal  shade.  There  never  can  be  a 
well-founded  complaint  of  legal  fraud,  or  of 
anything  else,  except  where  some  duty  is 
shown,  and  correlative  right  and  some  viola- 
tion of  that  duty  and  right.  .  .  .'  In  truth 
we  are  discussing  the  legal  aspect  of  a  moral 
question,  and,  as  we  have  seen,  the  common 
law  does  practically  adopt  the  same  standard 
as  morality.  The  apparent  exception  to  which 
'legal  fraud'  is  sometimes  attached  is  the  lia- 
bility of  the  principal  for  the  fraud  of  his  agent ; 
but  this  may  be  rested  on  another  moral 
ground.  His  claim  to  take  advantage  of  his 
agent's  fraud  is  in  itself  a  moral  fraud." 

Sheldon  Amos,   M.  A.,   Professor  of  Juris- 


54        MORAL  LAW  AND  CIVIL  LAW 

prudence  in  University  of  London,  very  high 
authority  on  any  subject  which  he  touches, 
from  whom  I  have  hereinbefore  quoted,  in  a 
book  entitled  A  Systematic  View  of  the 
Science  of  Jurisprudence,  on  page  516  says: 

"There  exists  somewhere  a  true  and  com- 
mon canon,  or  standard  of  action,  inflexible  in 
itself,  and  yet  withal  admitting  of  an  easy 
adjustment  and  the  most  exquisite  modula- 
tions for  all  members  of  society,  which  the 
more  habitually  each  member  adopts,  the 
vaster  is  the  expansion  of  which  his  own  na- 
ture is  capable,  and  the  less  is  the  chance  of 
the  need  of  interruption  to  others;  and  which 
the  more  habitually  all  men  adopt,  the  more 
freely  and  harmoniously  the  general  machin- 
ery of  social  intercourse  works.  This  canon 
or  standard  of  action  is  hard,  indeed,  to  dis- 
cover, and  particular  societies  may  spend  long 
ages  in  unavailing  efforts  to  discover  it.  ... 

This  canon  or  standard  of  actiong,  including 
here  under  the  term  action  all  the  thoughts 
and  feelings  that  give  it  life  and  warmth,  is 
absolute  morality.  It  is  only  the  visible  image 
of  the  mechanical  scaffolding  of  this  that  is 
designated  by  the  phrase,  'National  law/  " 

When  the  law  by  its  expansion  and  its 
nearer  approach  to  the  image  of  absolute 
morality  becomes,  as  the  author  says,  "a  mode 
of  benevolent  guidance  and  aid,"  then,  as  he 


PARTS  OF  THE  SAME  THING          55 

continues,  "it  characteristically  stands  forth 
as  the  ever  present  and  incarnate  witness  of 
that  ultimate  morality  of  which  it  is,  at  best, 
no  more  than  the  symbol  and  the  counterpart." 

This  distinguished  author  closes  his  work  as 
follows : 

"It  is  not  then  in  law  nor  in  government  that 
hope  must  be  placed  for  the  direct  culture  of 
a  nation's  vitality.  It  is  in  moral  and  spiritual 
efforts,  whether  expressed  in  salutary  and 
silent  influences  or  in  highly  systemized  or- 
ganizations. ...  In  a  word,  it  is  to  these 
direct  inspirers  of  human  virtue  and  energy 
that  law  itself  must  turn  in  order  to  find  at 
hand  a  race  of  citizens  whose  dearest  concern 
will  be  to  obey,  to  cherish,  and  to  reform  it." 

There  seems  to  be  a  general  impression 
abroad  that  the  word  "morality"  is  a  general 
term  like  the  words  "cattle"  and  "horses,"  and 
that  it  includes  many  different  varieties. 
Under  this  false  idea  morality,  as  applied  to 
the  ministers  of  the  Gospel,  is  one  thing;  to 
the  teacher,  another  thing;  to  the  attorney,  an- 
other thing;  to  the  business  man,  another 
thing;  and  to  the  applicant  for  license  to  sell 
intoxicating  liquors,  it  is  anything  for  his  es- 
pecial benefit.  It  is  high  time  for  earnest 
teaching  to  correct  these  errors  in  the  public 
mind.  Morality  is  like  truth;  it  has  no  varie- 
ties. It  is  the  same  thing  in  every  place  and 


56        MORAL  LAW  AND  CIVIL  LAW 

relation;  whether  it  appears  in  the  pulpit,  in 
the  business  transaction,  in  the  court  of  jus- 
tice, in  the  home,  or  in  political  affairs.  It  is 
one  thing  that  cannot  be  adjusted  to  accom- 
modate the  necessities  of  any  man  or  any 
business.  In  the  language  of  the  highest  court 
in  the  State  of  New  York,  heretofore  quoted, 
but  which  I  repeat  because  of  the  great  value 
there  is  in  the  expression,  "Sound  morals,  as 
taught  by  the  wise  men  of  antiquity,  as  con- 
firmed by  the  precepts  of  the  Gospel,  and  as 
explained  by  Paley  and  Horne,  are  unchanged. 
They  are  the  same  yesterday  and  today." 

Let  it  be  fully  understood  that  in  legal  con- 
templation, thoroughly  settled,  Christian  Mo- 
rality, Statutory  Morality,  Constitutional  Mo- 
rality, Common  Law  Morality,  Common 
Sense  Morality,  and  Morality  are  all  the  same 
thing.  Whenever,  wherever,  and  in  whatever 
connection  the  word  "morality"  is  used,  it 
means  morality.  If  ever  used  in  any  other 
sense,  it  is  improperly  used.  Simplifying  the 
legal  standard,  it  may  be  easily  understood 
that  the  law  considers  questions  of  morality  as 
governed  by  the  golden  rule. 

There  is  not  any  standard  of  religious  creed. 
A  man  may  profess  any  kind  of  religious  be- 
lief that  is  not  immoral  and  does  not  violate 
any  civil  law. 

Mormonism  was  only  unlawful  so  far  as  it 


PARTS  OF  THE  SAME  THING          57 

was  immoral,  and  its  immorality  consisted  in 
recognizing  the  plurality  of  wives. 

There  is  a  legal  standard  of  morality  up  to 
which  every  man  must  come,  and  the  standard 
is  the  same  in  every  State.  This  is  fixed  and 
required,  like  standards  of  weights  and  meas- 
urements. The  standards  of  weights  and 
measurements  might  be  changed,  but  the 
standard  of  morality  cannot  be.  It  has  been 
settled  and  fixed  as  the  work  of  all  the  learn- 
ing, wisdom,  and  experience  of  the  past,  in 
fact,  by  a  super-natural  influence,  and  cannot 
be  changed. 

Civil  government,  applying  this  standard  to 
business  affairs,  will  compel  full  measurement, 
full  weight,  full  count,  and  that  the  goods 
come  up  to  the  sample.  This  is  absolutely 
necessary  to  promote  and  protect  business  af- 
fairs. 

If  civil  government  were  to  give  its  whole 
attention  to  the  cultivation  of  the  youth  in 
high  integrity  in  business  affairs  only,  and  the 
punishment  of  offenses  against  the  rules  of 
morality  in  this  regard  only,  how  long  could  it 
hold  together?  The  social  affairs  of  her  citi- 
zens are  of  the  most  importance  to  the  gov- 
ernment, and  are  not  to  be  neglected. 

A  young  man  from  a  farm  not  many  years 
ago  presented  himself  to  the  president  of  the 
Indiana  State  University,  and  said  he  had  de- 


58        MORAL  LAW  AND  CIVIL  LAW 

termined  to  become  a  public  speaker,  and  had 
come  to  study  grammar.  The  president  asked 
him  what  else  he  desired  to  study.  He  said, 
"Nothing  else."  The  president  said,  "We  can- 
not teach  you  grammar  by  itself.  You  must 
take  other  studies  with  it."  The  young  man 
said,  "Why,  is  not  grammar  in  a  book  by 
itself?"  The  president  said,  "Did  you  ever  try 
on  the  farm  at  home  to  fatten  only  one  quarter 
of  a  beef  at  a  time?"  He  answered,  "No;  you 
cannot  fatten  a  beef  at  all,  unless  you  fatten 
it  all  together."  The  president  said,  "So  you 
must  fit  yourself  all  together  if  you  expect  to 
meet  your  ambition." 

The  government  can  only  be  safe  when  her 
citizens  are  developed  and  regulated  by  the 
moral  standard  as  applied  alike  to  business, 
educational,  and  social  affairs.  The  leaders  in 
strikes  and  mobs,  who  block  and  terrorize 
business,  disregard  morality  in  social  affairs, 
and  do  not  believe  that  morality  exists  in  busi- 
ness affairs,  are  products  of  false  teachings  on 
morality  in  civil  affairs. 

It  is  more  important  to  the  government  that 
a  citizen  should  be  moral  than  that  he  should 
be  religious,  but  religion  is  the  greatest  teacher 
upon  the  subject  of  morality.  This  is  the 
reason  why  the  law  encourages  religion  and 
religious  worship. 

It  has  been  held  in  various  States,  especially 


PARTS  OF  THE  SAME  THING          59 

in  Pennsylvania  by  her  Supreme  Court,  that 
the  Christian  religion  is  a  part  of  the  law  of 
the  land,  and  that  the  system  of  morality  as 
represented  and  defined  by  the  Christian  re- 
ligion is  the  standard  of  morality  in  this 
nation. 

Paley  combined,  in  one  treatise,  moral  and 
political  philosophy.  He  laid  down  the  rigid 
rules  of  morality  as  they  were  in  his  day,  and 
had  been  from  time  immemorial,  and  ever 
must  be.  Yet  he  has  been  charged  by  high 
authority  with  attempting  to  modify  them  a 
little  to  accommodate  aristocratic  influences. 

When  the  word  "morality"  was  used  in  the 
Constitution  of  Indiana  in  1851,  and  made  the 
first  and  most  important  subject  upon  which 
the  Legislature  is  commanded  to  act,  it  must 
be  presumed  that  it  was  so  used  in  contempla- 
tion of  its  history  and  full  meaning,  not  only 
as  understood  in  1851,  but  also  as  its  fullness 
and  meaning  shall  appear  in  1951,  and  always. 

It  will  be  seen  that  the  present  constitution 
of  Indiana,  adopted  in  1851,  took  the  word 
"moral"  out  of  its  former  position  in  relation 
to  other  subjects  and  gave  it  the  first,  chief 
and  most  prominent  place  in  the  present  con- 
stitution. It  now  stands  ahead  of  education 
and  all  other  subjects  in  its  importance  and 
demand  upon  the  legislature,  according  to  the 
requirements  of  the  constitution.  This  word 


60        MORAL  LAW  AND  CIVIL  LAW 

is  not  a  general  term  to  cover  different  codes, 
theories  or  standards  of  morality,  for  that 
would  have  been  using  a  meaningless  term. 

The  constitution  clearly  contemplates  a 
standard,  and  only  one  standard,  one  system 
and  one  code  of  morality.  What  standard? 
What  system?  What  code?  This  section  of 
the  constitution  used  the  words  "education," 
"science"  and  "agriculture."  The  legislature 
and  the  public  have  had  little  trouble  in  under- 
standing and  dealing  with  these  subjects.  The 
legislature  has  made  provision  for  promoting 
these  by  large  means,  by  careful  and  compe- 
tent instruction  and  the  suppression  of  all  an- 
tagonistic influence.  The  constitution  meant, 
evidently,  by  the  word  "education"  the  best 
system,  the  best  standard  and  the  most  per- 
fect instruction  known  to  persons  of  the  high- 
est training  and  education ;  and  the  words 
"science"  and  "agriculture,"  the  most  perfect 
theory  and  system  known  to  the  most  scien- 
tific and  experienced  men,  and  men  of  the 
highest  culture,  respectively,  upon  these  sub- 
jects. And  the  constitution,  by  the  word 
"moral,"  contemplated  the  most  perfect 
theory  and  system  and  code  of  morals  known 
to  the  people  of  the  highest  culture  and  train- 
ing upon  this  subject.  Education  can  only 
be  promoted  by  teaching  truth  and  removing 
error.  Science  and  agriculture  can  only  be 


PARTS  OF  THE  SAME  THING          61 

promoted  by  teaching  the  truth  upon  these 
subjects  and  correcting  errors  in  regard  to  the 
same.  And  it  is  evidently  contemplated  that, 
as  knowledge  upon  these  subjects  and  practi- 
cal experience  should  increase,  the  legal  deal- 
ing with  these  subjects  should  keep  pace  with 
the  growth  of  public  intelligence  and  culture. 

If  the  legislature  were  to  provide  for  au- 
thorizing or  protecting  any  theory  or  system 
that  was  found  to  be  erroneous,  antagonistic 
and  disastrous  to  education,  science  or  agri- 
culture, and  promotive  of  serious  and  dan- 
gerous errors  upon  either  of  these  subjects, 
there  can  be  no  question  that  such  legislation 
would  be  void. 

This  method  of  interpretation  can  be  applied 
to  this  question  with  ease,  and  the  question 
cannot  be  properly  determined  by  any  other 
method.  Let  us  trace  this  word  by  its  history 
and  use,  to  ascertain  what  is  meant  by  it  in 
the  Indiana  constitution. 

The  saying  is  quite  common  that  morality 
has  no  place  in  politics  nor  legislation;  that 
people  cannot  be  made  moral  by  law.  There 
can  be  no  excuse,  and  toleration  ought  not  to 
be  given  to  such  misinformation  in  Indiana  at 
this  day.  It  is  a  humiliating  illustration  of 
the  prevalence  of  vicious  influences.  The 
truth  is,  that  morality  must  be  given  the  first 
and  chief  consideration  in  legislation  and  in 


62        MORAL  LAW  AND  CIVIL  LAW 

judicial  proceedings,  and  i:  i-.,ys  its  imperious 
hand  on  the  private  citizen,  legislator,  chief 
executor  and  the  courts. 

What  is  said  here  concerning  the  constitu- 
tion of  Indiana,  applies  to  the  constitution  of 
all  the  states,  whether  morality  is  specifically 
referred  to  or  not. 

It  is  my  purpose  to  aid  in  correcting  the  im- 
pression that  there  are  different  kinds  and 
standards  of  morality. 

There  is  only  one  kind  and  only  one  stan- 
dard of  morality. 

This  is  true  in  every  state  and  by  the  laws 
of  the  United  States. 

Then,  when  we  speak  of  moral  law  and 
civil  law,  we  mean  parts  of  the  same  thing. 

Using  commonplace  terms,  morality  and 
moral  character  is  each  made  of  the  following 
elements  in  equal  parts : 

1.  Fair  dealing  in  business  and  social  life. 

2.  The  exertion  of  a  good  influence  in  all 
relations;  and, 

3.  Faithful  obedience  to  the  law. 

Every  man  knows  either  one  of  these  ele- 
ments when  he  sees  it,  or  hears  it,  or  feels  it. 
Every  man,  I  mean  every  man  who  knows 
enough  to  exercise  the  privileges  of  citizen- 
ship in  any  form,  in  fact,  knows  full  well  what 
morality  and  moral  character  are  in  every  other 
form  except  in  legal  contemplation.  My  pur- 


PARTS  OF  THE  SAME  THING          63 

pose  is  to  make  clear  and  to  emphasize  the 
most  important  fact,  that  morality  and  moral 
character  are  exactly  the  same  in  legal  con- 
templation as  they  are  when  viewed  from 
any  other  established  standpoint. 


PARTS  OF  THE  SAME  THING         65 


CHAPTER  IV. 
What  Is  Immorality? 

IT  may  seem  unnecessary  to  ask  such  a 
question.  It  may  seem  that  this  is  a  fool- 
ish question.  However,  my  observation 
leads  me  to  believe  that  there  is  a  very  great 
uncertainty  in  the  public  mind  upon  this  sub- 
ject, especially  as  to  the  legal  comprehension 
of  the  word  "immorality."  Let  it  be  kept  in 
mind  that  I  am  considering  every  matter  in 
this  work  from  a  legal  standpoint  only.  I 
use  Indiana  as  an  illustration  of  what  is  true 
of  every  State  in  this  government.  I  must 
depend  upon  illustrations  from  this  State,  be- 
cause to  follow  the  subject  as  it  has  run 
through  all  the  States  is  unnecessary  for  the 
purpose  of  this  work.  The  illustrations  used 
can  be  pursued  by  the  citizens  of  any  State, 
and  would  be  found  to  apply  as  forcibly  in 
any  other  State  as  in  Indiana. 

The  Legislature  in  Indiana  has  passed  laws 
denning  offenses,  every  one  of  which  any 
candid  person  will  admit  is,  independent  of 
civil  laws,  and  immoral  act.  Those  offenses 


66        MORAL  LAW  AND  CIVIL  LAW 

which  are  essentially  wrong  and  immoral^ 
though  some  are  made  so,  only  because  they 
interfere  with  the  rights  of  others  and  are 
forbidden  as  a  public  necessity  in  Indiana, 
and  the  same  in  other  States.  For  the  pur- 
pose of  showing  the  extent  to  which  the  In- 
diana Legislature  has  gone  in  its  attempt  to 
protect  society  and  compel  the  observations 
of  moral  conduct  and  public  welfare,  I  quote 
the  subjects  of  many  criminal  statutes  in  In- 
diana. This  may  seem  at  first  impression  a 
waste  of  time  and  space.  I  think,  however, 
careful  consideration  will  find  this  long  list 
of  criminal  offenses  a  surprise  and  interest- 
ing to  show  what  legislators  feel  compelled 
to  do  to  promote  morality  and  fair  dealing 
among  the  people  by  an  effort  to  suppress 
immorality.  I  give  the  name  of  the  subjects 
that  are  described  as  criminal  offenses  in  In- 
diana which  are  substantially  the  same  in  the 
other  states: 

Abandonment  of  wife  or  child. 
Abduction  for  prostitution. 
Abortion,  attempting. 

soliciting  medicine  for. 
Acid,  throwing  on  person. 
Acknowledgement,  false  certificate, 

not  explaining  instrument, 

signing  blank. 


PARTS  OF  THE  SAME  THING          67 

Adulteration  of  foods  and  drugs, 

of  candy, 

of  vinegar, 

milk  adulterating, 

formaldehyde,  use  of, 

animal  foods, 

wines,  adulterating, 

liquors,  adulterating. 
Adultery,  penalty. 
Advertisement,  defacing  legal, 

posting  illegally, 

publishing  illegal. 
Affidavit,  false  attestation. 
Affray,  penalty. 

Agent,  illegal  insurance  company. 
Agricultural  fair,  trading  near. 
Aiding  hostile  army. 
Aid  to  officer,  refusing. 
Amalgamation,  penalty, 

counseling,  penalty. 
Animals,  altering  brands  on, 

malicious  injury  to, 

dogs,  stealing, 

dead,  nuisance  by, 

selling  deceased, 

food  for,  adulteration, 

cruelty  to, 

definition  of, 

keeping  for  fighting, 

cruelly  carrying, 


68        MORAL  LAW  AND  CIVIL  LAW 

railroads  carrying, 

glandered  horse  at  large, 

sheep,  deceased  at  large, 

deceased,  transportation, 

damages,  liability  for, 

Spanish  or  Texas  fever,  transporting, 

Hog  carcass,  transporting, 

selling  deceased,  false  representation, 

search  warrants, 

duty  of  officers. 
Arms  of  State,  sale,  secreting, 

furnishing  to  minors. 
Army,  aiding  hostile. 
Arson,  definition,  punishment, 

murder  in. 
Assault,  definition,  punishment, 

with  felonious  intent. 
Assault  and  Battery,  acid, 

throwing  on  person. 
Assault  and  Battery,  felonious  intent, 

definition,  punishment. 
Assignation,  houses  of, 

enticing  female  to. 
Attacking  public  conveyance. 
Auditor  of  State,  illegal  warrant, 

not  accounting. 
Badges,  unlawful  use, 

of  secret  societies. 
Bank,  deposits  after  insolvency, 

overdraft  by  officer, 


PARTS  OF  THE  SAME  THING          69 

loans  to  bank  officers, 

check  on  to  defraud, 

selling  notes  of  broken, 
Barber  shops,  closing  on  Sunday, 
Barrator,  common. 
Baseball  or  games  on  Sunday, 
Betting,  pool  selling. 
Bigamy,  penalty, 

proof,  of  marriage,  venue. 
Bills,  posting  unlawfully. 
Billiards,  minors  playing. 
Birds,  wild,  protection. 
Blackmailing. 
Blasphemy,  penalty. 
Boats,  landing  family. 

signals  on  at  night. 
Books,  library,  defacing. 
Brands  on  animals,  altering, 

false  on  packages, 

altering  inspectors. 
Branding  packages  falsely. 
Brant,  killing,  penalty. 
Bribery,  public  officers, 

of  jurors  and  others, 

carriers  soliciting  bribes, 

of  employes  of  carriers. 
Bridges,  injuring, 

drawbridges. 

Buildings,  fire-escapes,  neglect. 
Bunko-steering,  penalty. 


70        MORAL  LAW  AND  CIVIL  LAW 

Burglary,  definition,  penalty, 

entering  house  feloniously, 

second  conviction,  penalty. 
Burning  prairies,  woods. 
Camp-meeting,  trading  near. 
Canada  thistle,  allowing  to  grow, 

complaints,  proceedings, 

grain,  sale  of. 
Canal,  obstructing,  injuring. 

opening  locks, 

banks,  driving  on. 
Candy,  adulteration. 
Carriers  soliciting  bribes, 

bribing  employes  of. 
Carrying  weapons, 

game  out  of  state, 
Cars,  getting  on  moving. 
Cemeteries,  defacing  tombstones, 
Check,  bank,  defrauding  by. 
Child  stealing, 

substituting, 

abandonment  of, 

support,  failure. 
Children,  overworking, 

employing  under  fourteen, 

cruelty  to, 

deserting,  neglecting, 

disposing  for  unlawful  purpose, 

begging,  using  for, 

dance-house,  exhibition  in, 


PARTS  OF  THE  SAME  THING          71 

underground  work,  hiring, 

affidavit,  arrest, 

support,  failure, 

delinquent,  encouraging, 

tobacco,  sale  or  furnishing  to. 
Cigarettes,  furnishing  to  minors, 

manufacture,  sale,  gift. 
City,  breaking  quorum  of  council, 

running  horses  in, 

contracts,  interest  of  officers  in. 
Claim  on  county,  officer  discounting, 

township  trustee  not  paying, 

false  presenting. 

Clerk,  printing  bureau,  misfeasance. 
Coal,  short  measure,  sale. 
Coin,  counterfeiting,  uttering, 

apparatus  for  making. 
Common  barrator. 
Compounding  felony, 

misdemeanor, 

prosecutions. 
Concealing  stolen  goods, 

wills, 

criminals. 

Conspiracy  to  commit  felony. 
Constable  purchasing  judgment. 
Contracts,  interest  of  officers. 
Contributions,  political,  insurance  companies. 
Conveyance,  public,  attacking. 

injuring  persons. 


72        MORAL  LAW  AND  CIVIL  LAW 

Convict,  escape  of. 
Corpse,  opening  grave  of, 

removal  unlawfully, 

concealment,  aiding, 

buying  of. 

Corrupting  jurors,  officer. 
Counterfeiting  coin. 

uttering  coin, 

instruments,  uttering, 

possession  of  coin  or  instruments, 

registered  label, 

label,  sale  of  goods, 

private  label, 

die  for  label, 

buying  or  selling  label, 

goods,  sale,  counterfeit  label, 

die,  possession,  sale, 

apparatus,  possession, 

stamps,  sale  of  goods. 
Cranberries,  gathering  on  public  lands. 
Credit,  false  statement, 

creditors,  defrauding. 
Crops,  carrying  off, 

lien  on,  sale,  notice. 
Cruelty  to  animals, 

definition  of, 

cruelly  carrying  animals. 
Dams,  injuring. 
Dance  halls,  liquors,  minors. 
Dead,  opening  grave  of, 


PARTS  OF  THE  SAME  THING          73 

removal  of  unlawfully, 

concealing  corpse, 

buying  corpse. 
Dead  animals,  nuisance, 

hogs,  transporting. 
Deeds,  false  acknowledgement, 

not  explaining, 

certificate,  signing  blank. 
Deer,  killing,  penalty. 
Defacing  records. 
Defrauding  creditors. 
Delinquent  children  encouraging. 
Deserting  wife  or  child. 
Detainer,  forcible. 
Distributing  drug  samples, 

deleterious  matter, 

definitions. 
Disturbing  meetings. 
Divorces,  promoting, 

from  bed  and  board,  cohabiting. 
Dogs,  larceny  of. 
Doors,  outswinging. 
Doves,  killing,  penalty. 
Drains,  injuring, 

obstructing, 

diverting  water. 
Drawbridge,  lights  on, 

over  streams,  regulations. 
Druggist,  sale  of  liquors, 

poisons,  sale  of, 


74        MORAL  LAW  AND  CIVIL  LAW 

prescription  to  sell  poison. 
Drugs  for  females,  advertising, 

adulteration  of, 

distributing  samples. 
Drunk  in  public  place, 

officer  during  business  hours. 
Drunkards,  sale  of  liquors  to. 
Duel,  challenge  to, 

fighting  of. 

Ducks,  wild,  protection. 
Dynamite,  killing  fish, 

manufacture,  use, 

place  of  making,  precautions, 

sale,  restrictions, 

unlawful  use  of, 

exploding,  restrictions, 

penalty. 
Elections,  betting  on, 

buying  votes, 

sale  of  votes, 

witnesses,  competency, 

release  of  liabilty, 

repeal  of  statutes, 

reward  for  conviction, 

limitation  of  actions, 

illegal  voting, 

importing  voters, 

voting  too  often, 

non-resident  voters, 

bribery  for  nomination, 


PARTS  OF  THE  SAME  THING          75 

bribing  voters, 

challenge,  false  affidavit, 

breaking  open  ballot  box, 

altering  or  destroying  returns, 

fraud  by  officers, 

altering  returns. 
Elections,  refusing  to  receive  vote, 

influencing  voter, 

opening  or  marking  ticket, 

deceiving  illiterate  voter, 

defrauding  voter, 

threatening  voter, 

seizing  ballot  box, 

destroying  ballots  or  boxes, 

petition,  resigning,  inducing, 

selling  signature  to  petition, 

fraud  at  special  election, 

buying  votes  at  special  election, 

bribing  to  procure  election. 
Electric  appliances,  injury  to. 
Embezzlement  of  public  funds, 

by  officers, 

accounting  by  officers, 

by  employes, 

attorneys  and  collectors, 

railroad  employes, 

carriers,  innkeepers, 

by  bailees, 

by  tenants, 

treasurers,  state,  county,  city, 


76        MORAL  LAW  AND  CIVIL  LAW 

city  and  town  officers, 

by  fiduciaries, 

bankers  and  brokers, 
Employes,  seats  for  female, 

contributions  from  railroad, 

discharging  unlawfully. 
Entering  house  to  commit  felony, 
Escape  of  criminals, 

aiding  escape, 

convict  escaping, 
Estray  law,  violating. 
Examination  questions,  sale  of. 
Explosives  to  kill  fish, 

dynamite,  manufacture,  use, 

opening,  explosives, 

charging,  tamping,  penalty. 
Extortion  by  officer, 

from  pensioner. 
Fair  grounds,  gaming  on. 
False  claim,  presenting, 

certifying, 

false  personation, 

heir,  producing. 
False  pretense,  definition,  penalty, 

statement,  credit, 

check,  defrauding  by, 
Family  boats,  landing, 

occupants  removing  articles. 
Faro-bank,  keeping  of. 
Felony,  compounding  of. 


PARTS  OF  THE  SAME  THING  77 

Females,  enticing  for  prostitution, 

drugs  for,  advertising, 

prostitution  by. 
Females,  enticing  to  immoral  place, 

obscene  language  before, 

employes,  seats  for. 
Ferry,  neglect  of  duties, 

excessive  charge. 
Fire  escapes,  failure  to  provide. 
Fires,  crimes  by. 
Fish,  protection  of, 

seines,  traps,  spears,  possession, 

destruction  of, 

trap  prohibited, 

fishing  season,  lakes, 

ice  on  streams,  catching  fish, 

on  lakes,  catching  fish, 

shooting  fish, 

trot  lines, 

catching  fish  regulated, 

size  of  fish  caught, 

number  of  fish  caught, 
obstructing  streams, 

nets  near  Ohio  river, 

polluting  streams, 

poisoning  fish, 

explosives  prohibited, 

private  ponds  protected, 

trespassing  on  land, 

commissioner,   fee,  prosecutions. 


78        MORAL  LAW  AND  CIVIL  LAW 

Fish  commissioner,  prosecutions,  fee. 
Flag,  United  States,  desecration, 

standard  defined, 

acts  permitted  by  U.  S., 

penalty  imposed. 
Foods,  selling  unwholesome, 

adulteration  of, 

animal  foods,  adulteration. 
Forcible  entry  and  detainer. 
Forgery,  definition,  penalty. 
Formaldehyde,  use  in  foods. 
Fornication,  penalty. 
Fraud  on  creditors, 

to  obtain  insurance. 
Fraudulent  claims, 

check, 

Fruit,  unlawful  taking. 
Fruit  trees,  false  representation. 
Gambler,  common. 
Game,  protection  of, 

birds,  game  defined, 

wild,  killing, 

brant,  killing,  penalty, 

carrying  game  out  of  state, 

deer,  killing,  penalty, 

doves,  killing,  penalty, 

ducks,  wild,  killing  number, 

permit  to  hunt, 

geese,  wild,  killing,  penalty. 
Game,  grouse,  killing,  penalty, 


PARTS  OF  THE  SAME  THING          79 

hunting  season, 

injuries  to  property, 

license  to  hunt, 

non-resident's,  fee, 
permits  to  hunt, 
pheasants,  killing,  penalty, 
imported,  killing,  penalty, 

prairie  chickens,  killing, 

quails,  protection  of, 

squirrels,  hunting, 

turkeys,  wild,  killing,  penalty, 

water  fowls,  permit  to  hunt, 

woodcock,  sale  of. 
Games,  allowing  minors  to  play, 

Sunday,  when  illegal. 
Gaming  on  Fair  Grounds, 

inducing  minor  to  game, 

betting  on  game  or  wager, 

election,  betting  on, 

pool  selling, 

keeping  pool-selling  room, 

keeping  gaming  devices, 

allowing  minors  to  play. 
Gaming  house,  keeping,  renting, 

visiting,  frequenting. 
Garnishment,  oppressive, 

transfer  of  claim. 
Gas-meter,  false, 

open  for  inspection, 

connections,  altering, 


80         MORAL  LAW  AND  CIVIL  LAW 

making  unlawful, 

mixers,  refusal  to  deliver, 

fire,  setting  gas  on, 

penalties, 

waste  of  natural  gas, 

jumbo  burners, 

penalties, 

charges,  excessive  prohibited, 

penalties. 

Geese,  wild,  protection. 
General  Assembly,  breaking  quorum. 
Gift  enterprise. 
Goods,  mortgaged,  removal. 
Grain  inspector,  misconduct. 
Grand  larceny. 
Grave,  disturbing  of, 

removing  unlawfully. 
Grouse,  protection  of. 
Habeas  corpus,  obstructing. 
Hand-car,  using  unlawfully. 
Health,  offenses  against. 
Heir,  producing  false. 
Highway,  injuring  trees  on, 

obstructing, 

cars,  obstructing  with, 

traction  engine,  using, 

heavy  hauling  on, 

friction  locks  on  wagons, 

corporations  obstructing, 

repairs,  neglect. 


PARTS  OF  THE  SAME  THING  81 

Highway,  rubbish  throwing  in, 

horse  racing  on, 

vehicles,  leaving  in. 
Hog,  transporting  dead. 
Horse,  glandered  at  large, 

racing  on  highway, 

running  in  city  or  town. 
House-breaking. 
House  of  assignation,  keeping, 

of  ill  fame,  enticing  to, 

keeping  of. 
Hunting  season, 

license  and  permits, 

on  Sunday. 
Husband,  deserting  family, 

ill  fame,  house  of  keeping, 

enticing  to, 

frequenting. 

Imbecile,  intercourse  with, 
Incest,  definition,  penalty. 
Indecency,  public. 
Insane,  intercourse  with. 
Inspector  of  grain,  misconduct, 

altering  marks  of. 
Insurance,  illegal  loans, 

fraud  on  underwriter, 

fraudulent  advertising, 

advertising  illegal  company, 

political  contributions. 
Intoxication  in  public  place, 


82        MORAL  LAW  AND  CIVIL_LAW 

of  officer. 

Jail,  keeping  unclean. 
Judge  practicing  law. 
Judgment,  officers  buying. 
Jurors,  influencing, 

bribing. 
Justice,  purchasing  judgment, 

blanks,  signing  of, 
Kidnapping, 

for  ransom. 
Labels,  counterfeiting. 
Laborers,  children,  overwork, 

discharging  unlawfully. 
Lakes,  fishing  in, 

ice  on,  fishing. 

Landlord,  lien  on  crops,  sale,  notice. 
Landmark,  removing,  altering,  lands, 

trespass  on, 

entry  on  state, 

trespass  on  public, 

cranberries,  gathering  public. 
Larceny,  grand, 

petit, 

dog,  stealing, 

goods  from  other  states, 

public  records. 
Law,  judge  practicing, 

county  officer  practicing. 
Legal  process,  obstructing, 

notices,  removal,  defacing, 


PARTS  OF  THE  SAME  THING          83 

disobeying  process. 
Libel,  criminal. 
Library,  defacing  books. 
License  to  hunt, 

failure  to  obtain  license. 
Lien  on  crops,  sale,  notice. 
Liquors,  adulterating, 

sale  of  poisonous, 

sale  of  intoxicated  person, 

drunkard,  sale  to, 

minors,  sales  to, 

misrepresenting  age, 

dance  halls,  minors,  sales, 

furnishing  to  prisoners, 

keeping  disorderly  place, 

Sundays,  holidays,  sales  on, 

druggists,  sales  by, 

camp-meetings,  picnics,  sales  near, 

soldiers'  home,  saloon  near. 
Loan  companies,  illegal  loans. 
Loaning  funds  illegally. 
Locks  on  wagons. 
Lotteries,  selling  tickets, 

advertising. 
Lynching  mob,  definition, 

accessory  after  fact, 

prosecution  for, 

removal  of  sheriff, 

aid  for  sheriff, 

military  force  called. 


84          MORAL  LAW  AND  CIVIL  LAW 

Malicious  trespass, 

injury  to  animals, 

prosecution. 
Manslaughter. 
Marriage,  performing  unlawfully, 

of  whites  and  negroes, 

certificate,  return  of, 

marks,  altering  inspectors', 

mayhem,  malicious,  cimple, 

medicine,  prescribing  when  drunk, 

prescribing  secret, 

samples,  distributing. 
Meetings,  public,  disturbing. 
Memorial  day,  sale  of  liquors. 
Stipped  milk,  adulteration. 
Military  expedition,  aiding, 

privateering,  penalty, 

force  to  aid  sheriff. 
Minors,  furnishing  weapons  to, 

inducing  to  gamble, 

allowing  to  game, 

billiard  rooms,  allowing  in, 

tobacco,  furnishing  to, 

cigarettes,  furnishing  to, 

liquors,  sale  or  gift  to, 

misrepresenting  age, 

dance  halls,  congregating  at, 

weapons,  furnishing  or  sale  to. 
Miscarriage,  attempting, 

soliciting  medicine  for 


PARTS  OF  THE  SAME  THING          85 

Misdemeanor,  compounding, 

Misprison  of  treason. 

Mobs,  lynching. 

Morphine,  sale  without  prescription. 

Mortgage,  false  acknowledgment, 

on  goods,  removal. 
Murder,  first  degree, 

second  degree. 
Navigable  streams,  obstructing, 

drawbridge,  regulations. 
Negroes  marrying  whites. 
Notary  public,  officer  acting  as, 

oath,  false  attestation, 

acknowledgement,  false  certificate, 

not  explaining  instrument, 

acting  after  term  expires. 
Notices,  legal,  removal,  defacing, 

posting  on  buildings. 
Nuisance,  public, 

definition  of, 

stagnant  water, 

dead  animals,  offensive  matter. 
Obscene  publications, 

possession,  sending, 

publication,  sale, 

language  before  females. 
Obstructing  legal  process, 
Office,  usurpation, 

keeping  at  wrong  place. 
Officer,  extortion  bv. 


86        MORAL  LAW  AND  CIVIL  LAW 

judge  practicing  law, 
county  officer  practicing  law, 
acting  as  notary, 
oath,  false  attestation, 
acknowledgement,  false  certificate, 
not  explaining  instrument, 
acting  after  term  expires, 
purchasing  judgment, 
negligence  by  officers, 
refusing  aid  to, 
acting  without  qualifying, 
intoxication  during  office  hours, 
office  kept  at  wrong  place, 
discounting  claim  on  county, 
interest  in  public  contracts, 
township  trustee,  paying  claims, 
Bribing  officers, 

auditor,  state,  illegal  warrant, 

state  not  accounting, 

false  reports  by, 

state    treasury,    obstructing    examination, 

treasurer,  state,  not  accounting, 

false  reports  by, 

payments   illegally, 

false  vouchers  by, 

defalcation  by, 
Officers,  highways,  neglect, 

recorder,  recording  deed  without  transfer, 
clerk  printing  bureau,  misfeasance, 
grain  inspector,  misfeasance, 


PARTS  OF  THE  SAME  THING          87 

teacher,  sale  of  questions, 

peace  officers'  residence, 

blank  forms,  signing  of, 

official  negligence. 
Ohio  river,  fish  nets  in  stream  near, 

fishing  in, 

Oleomargarine,  sale  of. 
Opium,  sale  without  prescription. 
Papers,  pictures,  obscene. 
Peace  officers,  residence. 
Pensioner,  extortion  from. 
Perjury,  false  testimony, 

voluntary  affidavit, 

subornation  of. 
Personation,  false. 
Petit  larceny. 
Pheasants,  protection  of. 
Physician,  prescribing  when  drunk, 

giving  secret  medicine. 
Picnics,  trading  near. 
Pictures,  papers,  obscene. 
Poison,  administering  feloniously, 

liquors,  sale  of, 

sale  by  druggist, 

sale  without  prescription,  2495. 
Poisoning  springs,  waters, 

animals, 

fish. 

Polluting  streams,  injuring  fish. 
Pool-selling,  penalty. 


88         MORAL  LAW  AND  CIVIL  LAW 

Poor,  cruelty  to. 

Posting  bills  on  buildings. 

Powder,  opening  and  use. 

Prairie  chickens,  protection. 

Prairies,  burning. 

Printing  bureau,  clerk,  misfeasance. 

Prison,  keeping  unclean, 

dealing  with  inmates, 

slops  from,  sale. 
Prisoners,  furnishing  liquors, 

escape,  aiding, 

convict  escaping, 

dealing  with. 
Privateering,  penalty. 
Prize-fighting. 
Process,  disobeying. 
Profanity,  penalty. 
Prostitute,  associating. 
Prostitution,  penalty, 

enticing  females  for. 
Provisions,  unwholesome,  sale, 

oleomargarine,  sale  of. 
Provacation,  penalty. 
Public  indecency. 
Public  records,  larceny, 

defacing,  destroying, 

forgery  of. 


PARTS  OF  THE  SAME  THING  89 

Public  Offenses  Declared  by  Indiana  Legis- 
lature in  1909. 

Arrest,  magistrate's  docket,  amendment. 

Billies,  exposing  for  sale. 

Camping  on  or  along  highways. 

Game,  see. 

Knucks,  exposing  for  sale. 

Novels,  paper,  exposing  for  sale. 

Order  of  trial,  amendment. 

Paper  novels,  exposing  for  sale. 

Public  accounting,  see. 

Requisition  for  fugitive,  amendment, 

expenses  of  agent. 
Robbery,  amendment, 

assault  with  intent  to  rob, 

third  offense,  penalty. 
Sabbath  breaking,  amendment, 

baseball. 
Slung  shot,  exposing  for  sale. 


Quail,  protection  of. 
Quorum,  breaking  city, 

breaking  in  legislature. 
Racing  horses,  on  highways, 

in  city  or  town. 
Raffling,  penalty. 
Railroads,  obstructing  tracks, 

carrying  animal?, 


90        MORAL  LAW  AND  CIVIL  LAW 

game,  carrying  illegally, 

Canada  thistle,  cutting  of, 

cars,  getting  on  moving, 

highway,  obstructing  with  cars 

passenger  car,  tools, 
locking  of, 

crossing  duties, 

signals  at  crossings, 

employes,  hours  of  service, 
contributions  from, 
discharge  of. 
Ransom,  kidnapping  for. 
Rape,  definition,  punishment, 

murder,   committed  by, 

intercourse  with  insane  person. 
Receiving  stolen  goods, 

goods  from  other  states. 
Records,  larceny  of, 

defacing,  destroying. 
Recording  deed  before  transfer. 
Removing  mortgaged  goods. 
Riot,penalty. 
Riotous  conspiracy. 
Roads,  neglect  of. 
Robbery,  definition,  penalty, 

murder  committed  in. 
Rout,  penalty. 
Sabbeth,  breaking, 

barber  shops  closing, 

baseball  or  games  on, 


PARTS  OF  THE  SAME  THING          91 

hunting  on, 

liquors,  sale  on. 

School  teacher,  examination  questions. 
Seduction,  penalty. 
Seines,  catching  fish, 

destruction  of, 

Ohio  river,  stretching  near. 
Shade  trees,  injuring. 
Sheep,  deceased  at  large. 
Shooting  in  towns  and  cities, 

at  public  conveyance. 
Sidewalks,  riding  or  driving  on. 
Signals  on  vessels. 
Slops  from  prison,  sale. 
Sodomy,  penalty. 
Soldiers'  picnics,  trading  near, 

liquor  saloon  near. 
Springs,  poisoning. 
Stallion,  letting  in  public. 
State,  crimes  against  sovereignty, 

lands,  entering  on, 

cranberries  on,  gathering, 

arms,  sale  of, 

officers,  not  accounting, 

library,  defacing  books. 
Stolen  goods,  receiving, 

from  other  states. 
Streams,  polluting, 

obstructing  navigable. 
Subpoena,  disobeying. 


92         MORAL  LAW  AND  CIVIL  LAW 

Sunday,  desecrating, 

baseball  or  games  on, 

barber  shops,  closing, 

hunting  on, 

liquors,  sale  on. 
Supervision,   repairing  highways, 

Canada  thistles,  cutting, 

complaint,  proceedings. 
Taxation,  giving  false  list. 
Teachers*  questions,  sale  of. 
Telegraph  or  telephone,  disclosing  message, 

injuring  lines. 

Texas  cattle,  diseased,  bringing  into  State. 
Tobacco,  furnishing  to  minors, 

cigarettes,  sale  or  gift  to  minors, 

sale  or  manufacture  of  cigarettes. 
Toll-bridge,  injuring, 

gate,  injuring, 

charging  excessive. 
Tombstones,  defacing,  removal. 
Town,  running  horses  in, 

shooting  in. 

Toy  pistol,  manufacture,  sale. 
Township  trustee,  refusal  to  pay  claim. 
Tow-path,  driving  on. 
Trading  near  camp-meeting,  fairs,  picnics, 

with  prisoners. 
Tramps,  penalty. 
Traps,  fishing,  penalty, 

destruction  of. 


PARTS  OF  THE  SAME  THING         93 

Treason,  definition,  punishment, 

misprison  of, 
Treasurer  of  state  not  accounting, 

false  report  by, 

illegal  payments, 

false  vouchers, 

payment  refused, 

of  county,  keeping  office. 
Treasury,  preventing  examination. 
Trees,  injuring, 

on  highway,  injuring. 
Trespass  upon  lands, 

malicious, 

on  public  grounds. 
Trust  companies,  illegal  loans. 
Trustee,  township,  paying  claim. 
Turkeys,  wild,  protection. 
United  States  flag,  desecrating. 
Usurping  office. 
Vagrancy,  penalty. 
Vehicles  in  highways, 

friction  locks  on. 
Vessels,  landing  without  right, 

signals  at  night. 
Vinegar,  adulterating. 
Vines,  injuring. 
Vote,  buying  or  selling, 

selling  vote. 
"Vaters,  poisoning, 

befouling, 


94        MORAL  LAW  AND  CIVIL  LAW 

stagnant,  creating. 
Wagons,  friction  locks  on. 
Water  fowls,  hunting. 
Weapons,  drawing. 

threatening  to  use, 

carrying  concealed, 

furnishing  to  minors, 

toy  pistols,  sale, 

pointing,  aiming. 
Weights,  using  short, 

coal,  measure  or  weight, 

gas  meter,  false, 

false  weights  or  labels, 

altering  inspectors'  marks, 

wheat,  inspection,  weight, 

standard  measures, 

buying  or  selling,  penalty, 


List  of  Crimes  Defined  By  Statutes  Relating 

To  Civil  Rights  and  Remedies,  and 

Which  Could  Not  Be  Separated 

Therefrom. 

Accidents,    boiler    explosions,   insur- 
ance              4781 

Adulteration  of  foods  and  drugs 7647 

Agent  of  foreign  corporation  acting 

unlawfully    4*04 

of  investment  companies  acting 

without   authority 4974 


PARTS  OF  THE  SAME  THING  95 

of  railroad  failing  to  obey  order 

of    court    3906 

of  insurance  companies   commit- 
ting fraud  4759 

Alien  laborers,  importing  under  con- 
tract      8012 

Allowances  against     county     unlaw- 
fully      6004-16 

Anatomical  board,  violating  act 6139 

Animals,    disposal    of    dead 3298 

supervisors  not  taking  up 3249 

preventing  lien  on  "get" 3255 

keeping  or  selling  diseased 3288-95 

bringing  diseased  into  state 3274 

violating   sanitary   regulations .  .  3273 
running     on     fence     association 

land    4260 

shipping  diseased  hogs, 

violating   acts    3293'98 

inspection  of  food  for 7939"49 

Auditor,    failure    to     collect    school 

funds    6261 

violating  county  council  act 5940 

license  to  soldiers  and  sailors..  8254 

allowance  of  illegal  claims 6009 

assessing  omitted  property 10311 

school  funds,  loans,  notice 6255 

Automobiles,   license,   violation 10476 

Baggage,  railroads,  excess,  charges.  5201 

free  on  railroads  


96        MORAL  LAW  AND  CIVIL  LAW 

Bakeries,  violating  act  regulating...  7637 

Bank  Officers  failing  to  file  statements  3345 
savings  banks,  failure  to  file  re- 

ports  3392 

violating  act  as  to  unlawful  mon- 
ey      8635 

private,  violating  act  34io 

examiner,   disclosures    3422 

Beneficiary  societies,  false  statements  5057 

failure  to  make  reports 5058 

violations  of  act  regulating 5059 

Benevolent  devises,  reports  of  trus- 
tees     3173 

Benevolent  institutions,  violating  act 

governing 3461 

borrowing  money   3463 

furnishing  liquors  to  inmates. . . .  3621 

enticing  children   from  orphans' 

home 3645 

Boards  of  police  and  fire  departments 

interference    9027-42 

of  embalmers  violating  act 7I29 

Boardinghouse,  defrauding 7848 

Boiler  explosions,  insurance  act 7848 

inspection,  violating  act 8052 

Bonds,  officers  failing  to  file  new. . . .  1320 

of  county,  issuing  and  state 6092-93 

Bucket-shops,  violating  act   3838 

Building  associations  not  complying 

with  law   4148 


PARTS  OF  THE  SAME  THING  97 

failing  to  make  reports 4J53 

Building,  failure  to  construct  fire  es- 
capes      3846 

letting  contracts  for  public  build- 
ings    5901 

violating  acts  concerning 3858 

Bureau    of   statistics,     violating    act 

regulating    9344 

Canning  establishments,  violating  act 

regulating    7637 

Carriers,    conditions    on    tickets     in 

small  type 3897 

coupon  tickets,  sale  and  redemp- 
tion     3900 

tickets,  posting  authority  to  sell  3903 
foreign  failing  to  file  statement . .  3906 
express  companies  delivering  ar- 
ticles    3916 

Cemetery,  locating  railroads  through  4453 

Children,  enticing  from  orphans'  home  3645 

bringing  dependent  into  state. . . .  3673 

delinquent,  encouraging 1648 

Cities,  officers  interested  in  contracts.  8646 
interfering  with  police  and  fire  de- 
partments       9027-42 

political  work  by  firemen  and  po- 
licemen      8788 

warrants  on  treasury  contrary  to 

law    ,  8801 


98        MORAL  LAW  AND  CIVIL  LAW 

misconduct  or  oppression  by  offi- 
cers         8891-94 

gas  rates  in  cities  of  100,000 8930 

Civil  rights,  violating  act 3864 

Coal  mines,  wash  houses  8624 

width  of  entries 8583 

operation  of,  care 8616 

Cohabitation  after  divorce  from  bed 

and  board   1095 

Combinations  in  restraint  of  trade..     3867-79 

Commissioners  of  county  letting  con- 
tracts              5901 

allowance  of  claims 6009-16 

receiving  extra  pay   6102 

Competition    in    trade,    contracts    to 

prevent    3867-79 

Confectioneries,    violating    act  regu- 
lating              7637 

Contracts,  city  officers  having  inter- 
est in   8648 

custodian  of  buildings  having  in- 
terest  in    9377 

school  officers  having  interest. .          6535 

letting  for  public  buildings 5901 

county  council  interested  in  con- 
tracts              5930 

Convicts,  goods  made  by  sale,  violat- 
ing act  8271 

Corporation,  agents  of  foreign  acting 
unlawfully    


PARTS  OF  THE  SAME  THING        99 

agents  of  investment  companies 

acting  without  authority 4974 

building     associations    violating 

law    4*48 

express  companies  failing  to  file 

statements    3906 

,        street  railway  companies  viola- 
ting law    5646-5684 

foreign     investment     companies 

violating  law   4974 

County,  change  of  boundary,  neglect 

of  officers   5834 

commissioners,  illegal  allowances  6009-16 

bonds,  issuing  and  statement. . .  6092-93 

letting  contracts  for  buildings..  5901 

pay    6102 

auditor  of  county  violating  act. .  594O 
issuing  bonds  or  warrants  illegal- 
commissioners     receiving    extra 

ly  "t 5943 

publication  of  notices  illegally. . .  5968 

County  seat,  removal,  violating  act 5876 

County  superintendent  violating  law  6384 

Dead,  disposal  of  bodies 6139 

animals,  disposal  of 329& 

Delinquent,  children,  encouraging. . .  1648 
Dentistry,  violating  act  regulating. .  6128 
Depositories  for  public  funds,  violat- 
ing act  7545 

Deputies,  unlawful  appointment 9*64 


100       MORAL  LAW  AND  CIVIL  LAW 

Devices  for  benevolence,   reports  of 

trustees    3J73 

Dikes  and  levees 8233 

Directors  of  gravel  road  companies, 

neglect   4529 

Dissection,  removal  of  body 6136 

violation  of  act  6139 

Divorce  from  bed  and  board,  cohabi- 
tation      1095 

Dogs,  failure  to  pay  tax 3261 

officers  failure  to  perform  duties  3263 

false  statement  concerning 3264 

keeping  mischievous  dogs 3265 

harboring  untaxed  dogs 3266 

female  dog  at  large 3267 

Drains,  protecting  lakes 6165 

Druggists,  selling  liquors 8334 

violating  pharmacy  law 9735 

Drugs,  adulteration  of 7647 

Election,  printer  unlawfully  deliver- 
ing ballots 6910 

officers    unlawfully    giving    out 

ballots    6913 

removing  ballots  unlawfully  ....  6914 

inspectors  not  appearing &919 

arrangement  of  rooms  and  booths  6922 

making  false  affidavit   6925 

Employing   persons   on   election 

day    6926 

false  declarations  by  voters 6930 


PARTS  OF  THE  SAME  THING        101 

receiving  ballots  not  indorsed. . .  6931 

removing  ballots  from  room ....  6932 

making  false,  or  destroying  pa-:  i  ;.;;•, 

pers  of  conspiracy ;•""*"  '^93S  * 

opening  packages  or  destroying/*   ; 

ballots    ':•.'"    :  '6^36 

entering  room  or  being  too  near 

polls    6937 

inducing  voter  to  mark  ballot  . . .  6938 

revealing  how  elector  voted 6939 

inducing  officers  to  violate  law. .  6940 
removing  or  destroying  election 

property 6941 

electioneering  or  disclosing  vote  6942 

voting  machines,  violating  law. .  7040 

poll  of  voters,  violating  act 7050-54 

primary  elections,  violating  act. .  7089-06 
Embalmers,  board  of,  violating  act. .  7129 
Embezzlement   by   gravel    road    em- 
ployes    4534 

by  militia  officers 8485 

by  state  librarian 9308 

Employes,  violating  law  regulating. .  7054-06 
Enumeration,     making     false     state- 
ments      7174 

officers,  neglect  or  fraud  by 7148-49 

negroes,  violating  law  as  to  en- 
umerating     7151-54 

of  school  children,  violating  act. .  6447-84 


102      MORAL  LAW  AND  CIVIL  LAW 

Express  companies,  failing  to  file  state- 
ments     3906 

>w  Factories,  violating  act  regulating. . .  8045 

'  'pollution  of  streams 7599 

.  Fairs;  entering  horses  under  assumed 

'  'names' 

Farmers,  institute,  violating  law....  3218 
Fees  and  salaries,    taxing    unlawful 

fees   7345 

failure  to   report   and   pay   over 

fees   7352 

county  commissioners,  receiving 

extra  pay    6102 

stenographer,  court,  illegal  fees. .  1691 

Fences,  failure  to  trim  hedges 7408 

Ferry,  keeping  without  license 743° 

violating  conditions  of  license. . .  7431 

Fertilizers,  selling  without  labels 7435 

interference  with  state  chemist. .  7436 
Fire    department    in    cities,   interfer- 
ence      9027 

Fire  escapes,  failure  to  construct. . . .  3846 

Firemen  engaging  in  political  work. .  8788 

Fishing  near  fish  ladders 7446 

Fish  ladders,  violating  act 7447-49 

Flags,  for  schools,  violating  act....  6416 

Foods,  violating  sanitary  laws 7637 

adulteration,  misbranding 7647 

for  stock,  inspection 7944-46 

Fruit  trees,  destroying  insects 7826-31 


PARTS  OF  THE  SAME  THING  103 

Funds,  excessive  loans  of  public 7507 

depositories  for  public 7547 

Gas,  natural,  violating  act  concerning  9061 

rates  for  in  cities  of  100,000 8930 

Gravel-road,  directors  neglecting  du- 
ties      4529 

embezzlement  by  employers  ....  4535 

Health,  secretary  of  board  neglecting 

duties    7606 

violating  law  by  officers  and  oth- 
ers    761 1 

quarantine,  violations    7614 

disinfecting  cars 7621 

Hedge  fences,  failure  to  trim 7408 

Highways,  flagmen  at  railroad  cross- 
ings    5261 

supervisor  giving  false  receipts.  7766 

repairs,  neglect  to  make 7779 

Hogs,  failure  to  burn  or  bury  dead. .     3273-96 
cleaning  cars  and  pens  when  ship- 
ping      3293 

shipping  diseased,  violating  act. .  3298 

disposal  of  dead 3296 

Horses,     entering      under      assumed 

names  at  fairs  3236-37 

racing,  violating  act 7817-18 

Hotels,  defrauding   7848 

safety,  violating  act 3846 

Indiana  Reformatory,  violating  act. .     .     9925 

Inspection,  violating  law  regulating.  7892 


104      MORAL  LAW  AND  CIVIL  LAW 

selling  oils  not  inspected 7893 

of  boilers 8052 

of  stock  foods 7944 

Insurance,  fraud  in  procuring 4728 

violating  law  concerning  foreign,  4804 
live-stock     insurance,      violating 

law    4840 

mutual  insurance,  violating  act. .  4677 
false    statements    of   representa- 
tions     4759 

life  policy,  insurable  interest. . . .  4713 

accidents,  boiler  explosions 4781 

Interurban  railways,  water  and  clos- 
ets    5684  a 

waiting  rooms  in  cities 5684 

Investment  companies,  foreign  violat- 
ing law  4974 

statements,   certificate,   violating 

act    497O 

Junk  dealers,  license 8277 

Jurors,  discrimination  against 3865 

Juvenile  court,  violating  act 1648-49 

Laborers,  violating  act  as   to   day's 

labor   7979-8o 

payment  of  wages,  violating  act.  7988 

issuing  cards  or  checks  for  pay. .  7990 

selling  goods  above  cash  price...  7993 
inducing      contract      to      waive 

rights    8006 


PARTS  OF  THE  SAME  THING  105 

preventing  discharged  from  ob- 
taining work    8007 

importing  aliens  under  contract.  8012 

factory  employes,  violating  act. .  8045 

Lakes,  draining  unlawfully   6165 

I  ands  of  state,  injuring  or  building 

on 8111 

drainage,     misconduct     of     en- 
gineer      8182 

Levees  and  dikes 8233 

Library,    state,    unlawful    obtaining 

books    9296 

embezzlement  by  librarian 9308 

removing  books  unlawfully 93J5 

License,  pilots  acting  without 9738 

free  license  to  soldiers  and  sail- 
ors      8254 

peddlers,  violating  act 8252 

for  sale  of  convict-made  goods. .  8271 

junk  dealers'    8277 

Lien  on  "get,"  preventing  obtaining.  3255 
Liquors,    furnishing   inmates   of   be- 
nevolent institutions  3621 

obstructing    view    of    place    of 

sale    8327 

minors  loitering  in  saloon 8328 

selling  to  minors  8329 

sales  by  druggists 8334 

selling  without  license 8337 


106       MORAL  LAW  AND  CIVIL  LAW 

prosecuting  attorneys  procuring 

license    94O9 

shipping  under  fictitious  names..  8346 

Loans  of  public  funds  unlawfully... .  7S°7 

Manufacturies  polluting  streams....  7599 

Marriage,  illegal  solemnization   8376 

violating  act  8368-70 

Medicine,  license  to  practice,  violat- 
ing act   8410-21 

violating  law  regulating  sale. . . .  9735 

veterinary  surgery,  violating  act.  8426 

for  poor,  free,  violating  act 7627 

Militia,  purchase  of  property  unlaw- 
fully      8468 

injuring  or  destroying  property.  8469 

false  certificate  to  pay  roll 8480 

embezzlement  of  funds 8485 

molesting  or  insulting  members.  8499 

disturbing  court-martial  8515 

perjury  before  court-martial  ....  8528 

Mines,  penalties  for  violating  law. . .  8598 

oil  for  use  in  mines,  violating  act.  7909 

wash  houses  for  coal  miners ....  8624 

width  of  coal  mine  entries 8583 

operation  of  coal  mines 8615 

Money,  issuing  unauthorized 8631 

failure  to  redeem  issues 8632 

bank  officers  violating  act 8635 

Monument  soldiers,  unlawful  acts  as 

to  10067-75 


PARTS  OF  THE  SAME  THING        107 

Municipal  officers  violating  law,  mis- 
conduct, misfeasance 8648-94 

Natural  gas,  pumping  and  transpor- 
tation, violating  act 9061 

plugging  wells  to  prevent  escape.  9068 

Notary   public   violating   law   as   to 

duties 9541 

stating    date    of    commission    in 

certificates   9537 

Nurseries,  inspection,  violating  act.  .  7835-42 

shipping  trees  or  vines 7831 

Nurses,  registration  9°99 

Oaths,  false  statements 75°° 

Officers,  neglect  to  file  bond  after  de- 
struction of  bond 1320 

court  reporter  taxing  illegal  fees.  1691 
supervisors,  neglect  of  duty. . . .  7779 
dogs,  failure  of  duties  as  to  taxa- 
tion   3263 

borrowing  money   on   credit  of 

state   3463 

auditor  of  county  not  collecting 

school  funds 6261 

of  cities  interested  in  contract...  8648 

political  work  prohibited 8788 

misconduct,  oppression 88911-94 

city  issuing  warrants  on  treasury  8891 
change    of    county    boundaries, 

neglect 5834 

school  book  law,  violating 6336-65 


108      MORAL  LAW  AND  CIVIL  LAW 

enumeration,  violating  statute..  7148-54 

loaning  public  funds  unlawfully.  7507 

health,  violating  laws 7606-11 

deputies,  appointing  illegally...  9164 

clerk  of  printing  bureau 9173 

librarian,  state,  embezzlement...  9308 
custodian  of  buildings  interested 

in  contracts    9377 

county  commissioners,  illegal  al- 

allowances    6009-16 

bonds    of    county,    issuing    and 

statement    6092-93 

treasurer     of     county,     keeping 

office    9483 

Officers,  Notary  Public,  violating  law 

as  to  duty 9541 

taxation,  neglect  of  duties  by  of- 
ficers     10431 

county     commissioners,     letting 

contracts   5901 

violation  of  county  council  act. .  5930-68 
superintendent  of  schools  violat- 
ing law 6384 

prosecuting  attorney    procuring 

liquor  license  9409 

Oil,  selling  or  using  uninspected 7892-93 

selling  branded  barrels 7895 

inspector  failing  to  prosecute...  7896 

adulterating  oil   7897 

failure  to  inspect  oil 7898 


PARTS  OF  THE  SAME  THING       109 


branding  barr-els  unlawfully  ..... 

inspectors  dealing  in  oil  ........  7901 

using  oil  below  standard  ........  7905 

plugging  wells  to  prevent  escape  9068 

use  in  mines,  violating  act  ......  79IQ 

flaxseed  oil,  selling  unlawfully...  9667 

sale  of  oil  not  inspected  ........  7893 

Optometry,  license,  practice  .........  9687 

Orphans,     enticing     from     orphans' 

home   .........................  3645 

Parks   in   cities,  violating  acts   con- 

cerning .......................  8754 

Patent-rights,  violating  act  regulat- 

ing sale  ......................  9722 

Peddlers,  license,  violating  acts  .....  8252 

Perjury,  election,  false,  affidavit  .....  6925 

enumeration,  false  affidavit  ......  7J47 

taxation,  false  oath  ............  10430 

before   court-martials  ...........  8528 

Pharmacy,  violating  act  regulating.  .  9735 
Physicians,  appropriating  free  medi- 

cine for  poor  .................  7627 

Pilots,  acting  without  license  .......  973^ 

Polling  voters,  violating  act  .........  705°-54 

Polluting  streams  by  manufactories.  7599 

Police,  interfering  with  department..  9027 

engaging  in  political  work  ......  8788 

Poor,  furnishing  transportation  to  ...  975^ 

medicines,  free  for  .............  7627 

Primary  elections,  violating  acts.  .  .  .  7089 


110      MORAL  LAW  AND  CIVIL  LAW 

Prisons,    receiving    pay    or    reward 

from  contractor 9839 

procuring    or    conniving  at   es- 
capes    9839 

interfering  with  officers  or  con- 
victs   9899 

Indiana    Reformatory,    violating 

act   9925 

Prosecuting  attorney  procuring  liquor 

license 9409 

Public  funds,  depositories  for 7545 

Quarantine,  violating 7614 

Railroads,  flagmen  at  highway  cross- 
ings     5261 

waiting-rooms  at  stations 5313 

agents  failing  to  pay  judgments.  5443 

located  through  cemeteries 4453 

street  railways  violating  law . . .  5646-845 

equipment  cars 5272-87 

safety       appliances,       overhead 

bridges    5288 

crews  on  trains 5295~97 

employes,  hours  of  service 53°6 

baggage,  excessive  charges 5201 

free  baggage  for  passengers 5*98 

violating  two-cent  fare  law 5197 

freight  shipments,  violating  law.  5209 

commission,  violating  act 5541-46 

disinfecting  cars 7621 

interurban  water  and  closets .... 


PARTS  OF  THE  SAME  THING       111 

waiting  rooms  in  cities 5684 

Reporter  of  court,  taxing  illegal  fees.  1691 

Sale  of  convict-made  goods 8271 

Sanitary  commission,  violating  regu- 
lations    3296 

regulations,  violating 3288 

San  Juse  scale,  destroying 7826-31 

Savings  banks  failing  to  file  report...  3392 
Schools,  auditor  not  collecting  funds.  5940 
failure  to  account  for  books  sold .  6336-64 
failure  of  officers  to  perform  du- 
ties   6363 

excessive  charge  for  books 6365 

locating  school  houses .    6419 

insulting  school  teacher 6608 

officers  interested  in  contract... .  6535 
sale  of  examination  questions . . .  6394 
enumeration,  refusal  to  give  evi- 
dence     6447-84 

apportionment  of  school  funds . .  6475 
compulsory   education,   violation 

of  act  6775 

superintendent  violating  law. . . .  6384 

wages  of  teachers,  violating  act.  6598 

funds,  loans,  notice  by  auditor. .  6255 

flags  for  school,  violating  act 6416 

Societies,  fraternal,  violating  act 5057-59 

Soldiers,  refusal  to  furnish  contents 

of  records  for 10055 


112      MORAL  LAW  AND  CIVIL  LAW 

withholding  or  destroying  papers 

of   10055 

defacing   monument    at    Indian- 
apolis     10067 

injuring  monument  or  fountains.  10068 
selling  pictures  of  monument.. .  10070 
street     railway     around     monu- 
ment      10073 

vehicles  on  street  around  monu- 
ment    10074 

issuing  free  licenses  to 8254 

Stallion,  preventing  owner  obtaining 

Hen   3255 

State  institutions,  false  oath  to  re- 
ports    7500 

State  lands,  injury  to  or  buildings. . .  8m 

draining,  misconduct  of  engineer  8182 

State    library,     unlawful     obtaining 

books   9296 

embezzlement  by  librarian 93°8 

removing  books  unlawfully 93*5 

Statistics,    violating    act    regulating 

bureau  9344~57 

Stenographer,  taxing  illegal  fees 1691 

Streams,  obstructing  navigable 6053 

pollution  by  manufactories 7599 

obstructing  7675 

cleaning,  failure 10138 

Street  railways,  unlawful  fare 5646 

refusal  to  give  transfers 5647 


PARTS  OF  THE  SAME  THING  113 

charging  excessive  fare 5657 

failure  to  heat  cars 57°4 

vestibule  cars,  failure 5706 

interurban,  water,  closets 5684!) 

waiting  rooms  in  cities 5684 

Supervisor  not  taking  up  animals... .  3249 

failing  to  trim  hedge  fences 7408 

issuing  false  receipts 7766 

neglect  to  repair  highways. .....  7779 

Surgery,  veterinary,  violating  act . . .  8426 

Surveyor,  cleaning  streams 10138 

Taxation,  false  statement  as  to  mort- 
gages      10155 

false  oath  as  to  property 10194 

refusing  to  give  evidence  or  take 

oath    10206 

disobeying  process  of  state  board  10294 

false  swearing,  when  perjury...  10430 

false  assessments  by  officers. . . .  10431 

officers  neglecting  duties 10332 

auditor    assessing    omitted    pro- 
perty     10311 

Teachers,  wages,  violating  act 6598 

Theaters,  violating  act  regulating. . ..  3858 
Tickets,    of    carriers,    conditions    in 

small  type   3897 

sale  and  redemption 3900 

posting  authority  to  sell 3902 

Tobacco      warehousemen      violating 

bonds   7830 


114      MORAL  LAW  AND  CIVIL  LAW 

Towns,  officers,  misconduct,  oppres- 
sion    8891-94 

contracts,  interest  of  officers  in . .  8648 

Township  trustee  registering  orders.  9371 
furnishing  transportation  to 

poor 9758 

hedge  fences,  failure  to  trim 7408 

Trade,  contracts  to  prevent  competi- 
tion     3867-79 

Trade-marks,  unlawful  use  of  bottles.  10439 

imitating  marks 10451 

selling  goods  with  false  mark..  10452 

unlawful  use  of  labels 10462 

Treasurer  of  county,  keeping  office. .  9483 

Trusts,  violating  act  concerning 3867 

Trustees,    reports   as   to   benevolent 

devises    3173 

of  townships  registering  orders..  9371 

furnishing  transportation  to  poor  9758 

failure  to  trim  hedge  fences 7408 

Vehicles,  automobiles,  violations 10476 

Vessels,  inspection  10481 

Veterinary  surgery,  violating  act....  8426 

Voters  polling,  violating  act 7°5O 

Wages  of  school  teachers,  violating 

act    6598 

Warehousemen    violating   conditions 

of  bond   793O 

issuing  false  receipts,  removal  of 

goods    10496 


PARTS  OF  THE  SAME  THING        115 

Water-course,  obstructing  navigable.         6053 

obstructing  6053 

pollution  by  factories 7599 

Weights  and  measures,  violating  act.       10521 

Wheat,  measuring 10525 

Wife,  desertion  of. 
Wild  game,  protection. 
Will,  secreting. 
Wine,  adulterating. 
Women,  prostitution,  enticing, 
prostitution  by, 
advertising  drugs  for, 
obscene  language  before, 
employes,  seats  for. 
Woods,  burning. 
Woodcock,  sale  of. 
Work-house,  keeping  unclean. 

In  all  eight  hundred  and  twenty-five. 
The  foregoing  statutes,  it  can  be  seen,  are, 
in  most  cases,  against  classes  of  offenses  in 
which  many  acts  in  each  class  are  included, 
so  that  the  number  of  acts  forbidden  is  at 
least  one  hundred  greater  than  the  number  I 
have  given  in  the  subjects  named.  Also  add 
to  the  foregoing  enumeration  offenses  defined 
by  acts  of  Congress  against  revenue,  postal 
laws,  etc.,  which  apply  in  every  State.  The 
Legislature  might  have  passed  a  sweeping 
statute  forbidding  everything  that  in  its  pur- 
pose or  effect  is  against  sound  morality.  It 


116      MORAL  LAW  AND  CIVIL  LAW 

will  be  seen  that  the  Legislature  has  gone  so 
far  in  its  special  definition  of  forbidden  offens- 
es as  to  legislate  even  in  restraint  of  the  tem- 
per and  the  tongue.  The  list  of  forbidden  acts 
is  growing,  not  only  in  the  States  of  this 
Union,  but  with  the  advancing  civilization  of 
of  every  government  of  the  world.  Profanity 
is  immoral,  and  has  been  forbidden  by  statute 
wherever  civilization  has  reached  respectable 
growth.  Profanity  was  unlawful  at  common 
law,  and  the  only  purpose  accomplished  by  a 
statute  upon  this  subject  is  to  fix  a  penalty. 
It  is  often  urged  that  statutes  should  not  be 
enacted  that  are  in  advance  of  public  senti- 
ment, and  that  if  the  law  cannot  be  enforced 
so  as  to  repress  what  it  forbids  it  should  be 
repealed,  so  as  not  to  cause  contempt  for  all 
law.  Statutes  against  profanity  are  so  fre- 
quently and  s©  boldly  disregarded  that  they 
stand  almost  as  dead  letters.  No  wise  man, 
however,  would  favor  the  abrogation  of  these 
statutes  and  thereby  remove  the  restraint  from 
the  brutal  tongue.  Profanity  was  condemned 
by  the  Ten  Commandments  more  than  three 
thousand  years  ago,  and  has  been  unlawful 
ever  since  by  existing  law  under  civilized 
conditions.  It  must  not  be  overlooked  that 
the  commandments  were  only  civil  laws,  in- 
tended solely  for  civil  government  on  the  earth 
among  men.  They  were  each  in  advance  of 


PARTS  OF  THE  SAME  THING       117 

public  sentiment  several  thousand  years  at 
least,  but  are  each  yet  maintained  with  no 
prospect  of  abrogation,  as  standards  of  human 
conduct  required  by  civil  law.  Nations,  gov- 
ernments, and  innumerable  people  have  been 
destroyed  because  of  disobedience  to  the 
principles  announced,  but  the  commandments 
stand  unchanged  as  the  law.  No  man  has  a 
legal  right  to  be  immoral,  or  to  do  any  im- 
moral thing  where  any  person  can  hear  or  see 
his  act.  He  has  no  legal  right  to  associate 
with  immoral  persons  or  characters.  The 
civil  law  can  break  open  the  door  to  the  hid- 
ing place  of  immorality,  disregard  all  rights  of 
liberty  and  property,  and  drag  the  offender  to 
the  judgment  seat.  The  notorious  case  of 
Oscar  Wilde  is  a  good  illustration  of  the  re- 
lentless pursuit  of  civil  law  after  private  sin 
and  immorality  and  the  crushing  judgment 
against  it. 

The  government  demands  in  imperious  terms 
private  and  public  morality  of  its  citizens,  and 
undertakes  to  enforce  its  demands.  It  expends 
fabulous  sums  of  money  to  educate  and  en- 
courage the  youth  in  the  qualities  of  good  citi- 
zenship. No  stronger  evidence  could  be  ad- 
duced of  the  fixed  and  dominating  influence  of 
morality  in  government  than  the  constitutional 
provisions,  legislative  acts,  judicial  decisions, 
and  settled  rules  of  law  upon  the  subject. 


PARTS  OF  THE  SAME  THING        119 


CHAPTER  V. 
Legislation  and  Morality. 

THE  purpose  of  legislation  is  to  provide 
for  the  emergencies  of  civil  government. 
The  limits  to  the  power  of  legislation  can 
be  stated  in  a  few  words,  without  entering 
into  refinements  of  constitutional  provisions 
or  legal  learning.  The  Legislature  can  enact 
whatever  the  public  necessity  requires  to  be 
enacted  in  order  to  carry  out  the  purpose  of 
the  government,  which  is  the  promotion  of  the 
public  welfare,  and  it  can  do  no  more.  As 
was  clearly  established  in  the  second  chapter 
of  this  work,  morality  is  the  fundamental  prin- 
ciple in  civil  government.  Therefore  the 
Legislature  can,  by  its  action,  do  whatever 
tends  to  promote  morality;  but  any  act  in  an- 
tagonism to  morality  is  void.  Every  act  of 
the  Legislature  must  be  in  harmony  with 
morality. 

Certain  purposes  must  be  in  the  mind  of  the 
Legislature  in  every  act— either  the  encour- 
agement and  promotion  of  morality,  intelli- 
gence, or  business  in  the  dealings,  associa- 


120      MORAL  LAW  AND  CIVIL  LAW 

tions,  and  deportment  of  men,  or  the  suppres- 
sion of  immorality.  It  will  be  found,  upon 
careful  examination  of  the  civil  and  penal 
statutes,  that  they  seek  to  accomplish  the  same 
ends.  They  seek  to  regulate  and  provide  for 
the  business  transactions  among  men,  so  as 
to  avoid  conflict,  injustice,  or  oppression.  It 
will  also  be  found  upon  careful  examination 
that  many  of  the  criminal  statutes  are  intend- 
ed to  enforce  and  protect  the  provisions  of 
legislation  upon  business  affairs.  It  is  a  great 
question  whether  criminal  statutes  are  not  in- 
creasing more  rapidly  than  civil  statutes.  In 
fact,  if  it  were  not  for  the  criminal  disposition 
in  business  transactions,  there  would  be  little 
necessity  for  business  regulations  by  law.  In 
every  government  in  Europe,  as  well  as  in  the 
United  States,  the  necessity  is  recognized  for 
greater  restraint  by  law  in  the  interests  of  so- 
ciety and  business  upon  immorality.  A  con- 
cise expression  upon  this  subject,  which 
might  be  multiplied  with  many  other  extracts 
of  similar  import,  I  quote  from  the  Encyclo- 
paedia Britannica,  Vol.  XI,  page  18,  what  is 
said  as  to  this  line  of  legislation  in  England : 
"Coercion  for  moral  purposes.  The  measures 
heretofore  noticed  may  in  general  be  justified 
either  on  the  ground  of  inability  of  the  per- 
sons protected  to  help  themselves,  or  on  the 
ground  that  some  good  society  as  a  whole, 


PARTS  OF  THE  SAME  THING        121 

or  to  a  large  portion  of  it,  is  secured  thereby. 
"Another  class  of  measures  openly  aims  at 
the  moral  importance  of  the  individuals  af- 
fected by  them,  and  in  this  class  there  is  an 
amazing  and  alarming  increase.  The  laws 
against  gaming  are  one  of  the  best  examples. 
At  common  law  a  wager  was  a  contract  en- 
forcable  by  law.  Not  content  with  declining 
to  enforce  wagers,  the  State  went  further  and 
tried  to  put  them  down  altogether.  It  made 
lotteries  illegal.  It  visited  with  heavy  penal- 
ties the  keeping  of  betting  houses  in  public 
places,  the  publication  of  betting  lists,  etc. 
Games  which  lead  to  betting  are  put  under 
the  restraint  of  a  license  system,  and  in  some 
parts  of  the  provinces  the  State  orders  its  citi- 
zens not  to  play  billiards  after  eleven  o'clock 
at  night.  .  .  .  The  State  first  of  all  limits 
the  number  of  public  houses;  then  it  dictates 
directly  the  hours  during  which  liquor  may  be 
bought  and  sold ;  and  in  Scotland  and  Ireland 
it  goes  further,  and  prohibits  altogether  the 
sale  of  liquor  on  Sunday.  A  committee  of  the 
House  of  Lords  has  touched  the  highest  point 
of  government  control  in  proposing  to  em- 
power local  authorities  to  shut  up  all  the 
public  houses  in  their  districts  and  carry  on 
the  business  for  themselves.  There  is  a  simul- 
taneous increasing  tendency  to  interfere  with 
people's  amusements;  fairs  are  being  put 


122       MORAL  LAW  AND  CIVIL  LAW 

down  as  immoral,  music  and  dancing  require 
license  charily  granted,  the  grip  of  the 
chamberlain  over  the  London  theaters  is 
tightening,  and  so  on. 

"The  course  of  moral  legislation,  in  fact, 
threatens  to  sweep  away  every  barrier  to  the 
encroachment  of  the  state. 

"The  extended  range  of  government  inter- 
ference in  other  things  has  been  accompanied, 
as  we  have  seen,  with  a  very  distinct  recom- 
mendation of  limits,  either  in  the  rights  of  the 
individual  conscience  or  in  the  capacity  of 
adult  manhood  to  manage  its  own  affairs. 
But  acts  of  Parliament  for  improving  the 
moral  characteristics  of  men  seem  to  recog- 
nize no  limit  at  all.  And  it  is  a  singular  fact 
that  while  this  kind  of  legislation  under  ex- 
isting social  arrangements  fails  to  affect  the 
well-to-do  classes,  and  oppresses  chiefly  the 
comparatively  poor,  it  is  becoming  more  and 
more  identical  with  the  popular  party  in 
politics,  and  gathers  strength  with  every  ad- 
dition to  the  popular  element  in  government." 

The  foregoing  statement  is  a  carefully  pre- 
pared and  unbiased  article  written  and  pub- 
lished more  than  fifteen  years  ago.  Anyone 
who  has  observed  the  tendency  in  Germany, 
France,  and  Russia,  or  smaller  governments  in 
Europe,  will  find  that  what  is  said  of  this  line 
of  legislation  in  England  is  true  of  these  gov- 


PARTS  OF  THE  SAME  THING        123 

ernments,  though  not  to  the  same  extent,  and 
the  same  is  true  in  the  United  State  and  in 
various  States  in  this  Union.  It  will  also  be 
found  upon  careful  examination  that  the  pur- 
pose of  this  line  of  legislation  is  to  promote 
morality  and  suppress  immorality.  We  hear 
the  statement  made  by  small  politicians  and 
men  who  only  seek  the  attainment  of  personal 
ends,  that  men  cannot  be  made  moral  by  legis- 
lation, that  morality  should  be  left  to  the 
Church  and  to  religious  teachers  or  to  home 
training.  It  is  amazing  the  extent  to  which 
this  idea  obtains,  not  only  in  politics  and  par- 
tisan expression,  but  among  all  classes  of  peo- 
ple. It  is  not  only  erroneous,  betraying  dense 
ignorance,  but  is  very  dangerous.  It  is  to 
this  heresy  we  must  attribute  the  treachery, 
scheming,  and  trickery  of  legislators^  and 
sometimes  of  courts  and  executive  offices. 
The  facts  are,  morality  has  everything  to  do 
with  legislation,  everything  to  do  with  the  ex- 
ecutive and  judicial  departments,  and  every- 
thing to  do  with  everything  when  civil  gov- 
ernment is  in  safe  hands. 

The  great  misfortune  in  legislation  is  that 
each  legislative  body  feels  that  is  it  not  gov- 
erened  by  ancient,  long-settled,  and  well-de- 
termined rules,  that  it  is  largely  independent 
and  unrestricted  by  precedents.  Considering 
the  ignorance  so  often  found  in  legislative 


124      MORAL  LAW  AND  CIVIL  LAW 

bodies,  the  utter  lack  of  experience  and  the 
weakness  of  so  many  of  the  members,  the 
skillful  manipulators  and  light  regard  for  con- 
sequences, it  is  not  surprising  that  wise  men 
have  dreaded  and  feared  the  work  of  legisla- 
tive bodies.  Had  it  not  been  for  the  restraints 
against  the  wrong  and  the  encouragement  for 
the  right  that  sound  morality  has  thrown  over 
these  bodies,  only  disaster  could  have  follow- 
ed. There  is  no  branch  of  the  government, 
however,  that  offers  greater  encouragement 
to  the  student  than  the  legislative,  notwith- 
standing the  weakness,  inexperience,  ignor- 
ance, corrupting  influences  and  temptation. 
The  history  of  this  branch  of  government 
shows  a  constant  rise  in  the  scale  of  morality, 
whatever  may  sometimes  appear  to  the  con- 
trary. It  is  constantly  illustrated  that  one 
man  of  moral  integrity  and  average  intelli- 
gence in  a  legislative  body  is  more  than  the 
equal  of  a  score  of  immoral  and  depraved 
members. 

Let  it  not  be  forgotten,  let  it  be  emphasized, 
repeated,  emblazoned  in  the  halls  of  every 
legislative  body,  that  morality  is  a  fundamental 
principle  in  legislation,  and  but  for  this  prin- 
ciple, this  law  of  nature,  this  law  of  God,  this 
law  of  man,  this  good  angel,  popular  govern- 
ment would  fail.  Morality  cannot  be  disre- 
garded by  the  Legislature;  it  must  be  regard- 


PARTS  OF  THE  SAME  THING       125 

ed,  or  the  action  of  the  body  is  void.  Moral 
law  was  not  created  by  a  legislative  body.  It 
was  never  enacted.  It  was  not  created  by  the 
Constitution  of  the  State  or  of  the  Nation. 
Neither  the  Constitution  itself  nor  the  Legis- 
lature can  disregard  it  and  the  action  be  valid. 
The  Legislature  may  not  bargain  away  the 
public  morals  permanently.  It  may  not  do  so 
temporarily.  It  cannot  bargain  away  the 
public  morals  for  one  year,  for  one  day,  nor 
for  one  hour.  Neither  the  constitution  nor  the 
people  themselves  can  do  this.  There  is  abso- 
lutely no  power  anywhere  to  bargain  away  or 
compromise  public  morality.  No  man  can  de- 
feat and  destroy  it ;  it  stands  as  a  fundamental 
principle.  What  is  meant  by  the  police  power 
of  the  State  is  the  unlimited  law  of  necessity, 
the  authority  in  the  Legislature  and  the  judi- 
ciary and  the  executive  to  protect  public 
morals,  public  health,  public  peace,  and  public 
welfare.  In  fact,  as  it  appears  to  the  author, 
"Police  Power"  is  a  doctrine  and  practice  as- 
sumed, without  statutory  enactment,  to  restore 
common  law  principles  and  practice  in  proper 
cases. 


PARTS  OF  THE  SAME  THING       127 


CHAPTER  VI. 
Common  Law  and  Morality. 

IN  addition  to  statutory  law  we  have  in  In- 
diana, for  our  government,  the  common  law. 
Sec.  236,  Revised  Statutes  of  1908,  in  Indi- 
ana, reads  as  follows: 

"The  law  governing  this  State  is  declared  to 
be  .  .  ."  Item  4.  "The  common  law,  and 
statutes  of  the  British  Parliament  in  aid  there- 
of, prior  to  the  reign  of  James  I  (except  the 
second  section  of  the  sixth  chapter  of  the 
forty-third  year  of  Elizabeth  and  the  ninth 
chapter  of  the  thirty-seventh,  Henry  VIII), 
and  which  are  of  a  general  nature  not  local  to 
that  kingdom  and  not  inconsistent  with  the 
first,  second,  and  third  specifications  of  this 
section." 

Common  law  is  defined  as  follows :  "The 
common  law  is  that  which  derives  its  force 
and  authority  from  the  universal  consent  and 
settled  customs  of  the  people.  It  has  never 
received  the  sanction  of  the  Legislature  by  ex- 
press act,  which  is  the  criterion  by  which  it  is 


128      MORAL  LAW  AND  CIVIL  LAW 

distinguished   from   the   statute   law.     It   has 
never  been  reduced  to  writing. 

"By  this  expression,  however,  it  is  not  meant 
that  all  of  these  laws  are  at  present  merely 
oral,  or  communicated  from  former  ages  to 
the  present  solely  by  word  of  mouth,  but  that 
the  evidence  of  our  common  law  is  contained 
in  our  books  and  depends  on  general  practice 
and  the  judicial  adjudications  of  our  courts. 
The  common  law  is  derived  from  two  sources, 
the  common  law  of  England  and  the  practice 
and  decisions  in  our  own  courts.  There  is  no 
general  rule  to  ascertain  what  part  of  the  En- 
glish common  law  is  binding.  ...  It  may 
be  observed  generally  that  it  is  binding  where 
it  has  not  been  superseded  by  the  Constitution 
of  the  United  States  or  of  the  several  States, 
or  by  legislative  enactments,  or  varied  by  cus- 
tom, and  where  it  is  founded  in  reason  and 
consonant  to  the  common  genius  and  manners 
of  the  people."  No  man  can  make  a  mark  at 
the  place  or  time  where  the  rules  of  common 
law,  or  any  erne  of  them,  were  found;  neither 
can  he  name  the  discoverer.  However,  as  each 
of  these  rules  has  stood  the  test  of  ages  and 
now  prevails  in  Indiana  and  elsewhere,  and  is 
in  perfect  accord  with  the  Ten  Commandments 
and  the  law  of  Moses  in  its  general  character, 
it  is  an  easy  thing  for  men  who  believe  in  the 
divine  authorship  of  the  Ten  Commandments 


PARTS  OF  THE  SAME  THING       129 

to  believe  that  these  same  rules  of  common 
law  were  of  divine  origin.  This  theory  takes 
these  rules  back  to  a  source  of  super-human 
wisdom.  The  method  of  explaining  rules  and 
principles  of  law  as  now  accepted  by  the  most 
profound  writers  and  authorities  upon  juris- 
prudence is  the  historic  method;  and  this 
method  of  explanation  traces  the  rules  of  com- 
mon law  to  the  source  I  have  indicated.  Any 
other  theory  as  to  the  origin  of  these  rules  and 
principles  of  common  law  ends  in  mist  and  ut- 
ter dissatisfaction. 

In  this  work  I  have  not  stated  and  shall  not 
insist,  because  I  deem  it  unnecessary  to  the 
purpose  in  hand,  that  Christianity  is  part  of 
the  law  of  the  land,  though  that  may  be 
claimed  by  citations  of  the  highest  authority. 
I  am  presenting  the  subject  of  morality  from 
a  different  standpoint — from  a  standpoint  to 
be  accepted  by  men  of  any  or  no  religious  be- 
lief. It  is  not  an  open  question,  subject  to 
controversy  or  debate  in  either  branch  of  the 
law,  whether  statutory  or  common  law,  that 
morality  is  the  fundamental  rule  and  principle 
by  which  the  law  is  regulated. 


PARTS  OF  THE  SAME  THING        131 


CHAPTER   VII. 
Common  Law  History  of  Morality. 

FOR  convenience  and  to  be  better  under- 
stood, I  quote  at  some  length  from  highest 
authorities : 

Kent's  Commentaries,  Vol.  i,  nth  Ed.,  pp.  2 
and  3:  "We  ought  not,  therefore,  to  separate 
the  science  of  public  law  from  that  of  ethics, 
nor  encourage  the  dangerous  suggestion  that 
governments  are  not  so  strictly  bound  by  the 
obligations  of  truth,  justice  and  humanity,  in 
relation  to  other  powers,  as  they  are  in  the 
management  of  their  own  local  concerns. 
States,  or  bodies  politic,  are  to  be  considered 
as  moral  persons,  having  a  public  will,  capable 
and  free  to  do  right  and  wrong,  inasmuch  as 
they  are  collections  of  individuals  each  of 
whom  carries  with  him  into  the  service  of  the 
community  the  same  binding  law  of  morality 
and  religion  which  ought  to  control  his  con- 
duct in  private  life." 

Note  to  the  above  on  p.  2:  "Heinecius  in 
his  'Elements  Juris  Natum  rae  et  Centium/  b. 
i.,  c.  I  and  3  (and  which  is  very  excellent  as  to 


132      MORAL  LAW  AND  CIVIL  LAW 

the  first  branch  of  the  subject),  and  all  the 
other  great  masters  of  ethical  and  national 
jurisprudence,  place  the  foundation  of  the  law 
of  nature  in  the  will  of  God,  discoverable  by 
right  reason  and  aided  by  divine  revelation; 
and  its  principles,  when  applicable,  apply  with 
equal  obligation  to  individuals  and  to  nations." 

"The  law  of  nations,  so  far  as  it  is  founded 
on  principles  of  natural  law,  is  equally  binding 
in  every  age  and  upon  all  mankind.  But  the 
Christian  nations  of  Europe  and  their  descend- 
ants on  this  side  of  the  Atlantic,  by  the  vast 
superiority  of  their  attainments  in  arts  and 
science  and  commerce  as  well  as  in  policy 
and  government,  and,  above  all,  by  the  brighter 
light  and  more  certain  truths  and  the  more 
definite  sanction  which  Christianity  has  com- 
municated to  the  ethical  jurisprudence  of  the 
ancients,  have  established  a  law  of  nations  pe- 
culiar to  themselves.  They  form  together  a 
community  of  nations,  united  by  religion, 
manners,  morals,  humanity  and  science;  and 
united  also  by  the  mutual  disadvantages  of 
commercial  intercourse,  by  the  habit  of  form- 
ing alliance  and  treaties  with  each  other,  of 
interchanging  ambassadors  and  of  studying 
and  recognizing  the  same  writers  and  systems 
of  public  law." 

Note  to  above  on  p.  4 :  "The  law  of  nature, 
by  the  obligations  of  which  individuals  are 


PARTS  OF  THE  SAME  THING        133 

bound,  is  identical  with  the  will  of  God;  and 
'that  will  is  ascertained/  says  Mr.  Manning, 
'either  by  consulting  divine  revelation  where 
that  is  declaratory,  or  by  the  application  of 
human  reason  where  revelation  is  silent.' 
Christianity,  in  the  words  of  Butler,  'is  an  au- 
thoritative publication  of  religion;'  and  it  is 
from  the  sanction  which  revelation  gives  to 
natural  law,  that  we  must  expect  the  gradual 
increase  of  the  respect  paid  to  justice  between 
nations. 

"Christianity  reveals  to  us  a  general  system 
of  morality,  but  the  application  to  the  details 
of  the  practice  is  left  to  be  discovered  by  hu- 
man reason." 

See  "Commentaries  on  the  Law  of  Nations," 
by  William  Oke  Manning,  Esq.,  London,  1839, 
b.  2,  c.  I :  "This  work  is  the  first  English 
treatise  which  I  have  seen  containing  a  regular 
and  didactic  discussion  of  the  science,  and  it  is 
a  work  of  great  excellence.  I  beg  leave  to  rec- 
ommend it  strongly  to  the  attention  of  the 
American  student." 

Cooley's  "Constitutional  Limitations,"  4th 
Ed.,  p.  587:  "Whatever  may  be  the  shades 
of  religious  belief,  all  must  acknowledge  the 
fitness  of  recognizing  in  important  human  af- 
fairs the  superintending  care  and  control  of 
the  great  Governor  of  the  universe,  and 
acknowledging  with  thanksgiving  His  bound- 


134      MORAL  LAW  AND  CIVIL  LAW 

less  favors,  or  bowing  in  contrition  when  vis- 
ited with  the  penalties  of  His  broken  laws.  No 
principle  of  constitutional  law  is  violated  when 
thanksgiving  or  fast  days  are  appoined;  when 
chaplains  are  designated  for  the  army  and 
navy;  when  legislative  sessions  are  opened 
with  prayer  or  the  reading  of  the  Scriptures, 
or  when  religious  teaching  is  encouraged  by  a 
general  exemption  of  the  houses  of  religious 
worship  from  taxation  for  the  support  of  state 
government. 

"Undoubtedly  the  right  spirit  of  the  con- 
stitution will  require,  in  all  these  cases,  that 
care  be  taken  to  avoid  discrimination  in  favor 
of,  or  against,  any  one  religious  denomination 
or  sect;  but  the  power  to  do  any  of  these 
things  does  not  become  unconstitutional  simply 
because  of  its  susceptibility  to  abuse.  The 
public  recognition  of  religious  worship  is  not 
based  entirely,  perhaps  not  even  mainly,  upon 
a  sense  of  what  is  due  to  the  Supreme  Being 
Himself  as  the  Author  of  all  good  and  all  law ; 
but  the  same  reason  of  state  policy  which  in- 
duces the  government  to  aid  institutions  of 
charity  and  seminaries  of  instruction,  will  in- 
cline it  also  to  foster  religious  worship  and 
religious  institutions  as  conservators  of  the 
public  morals,  and  valuable,  if  not  indispens- 
able, assistants  in  the  preservation  of  public 
order." 


PARTS  OF  THE  SAME  THING        135 

Cooley's  "Blackstone,"  Vol.  i  (foot  pages 
22  and  23)  :  "This  law  of  nature,  being  coeval 
with  mankind  and  dictated  by  God  Himself, 
is  of  course  superior  in  obligations  to  any 
other. 

"It  is  binding  over  all  the  globe,  in  all 
countries  and  at  all  times;  no  human  laws  are 
of  any  validity,  if  contrary  to  this;  and  such 
of  them  as  are  valid,  derive  all  their  force  and 
all  their  authority,  mediately  or  immediately, 
from  this  original.  But,  in  order  to  apply  this 
to  the  particular  exigencies  of  each  individual, 
it  is  still  necessary  to  have  recourse  to  reason 
whose  office  it  is  to  discover,  as  was  before  ob- 
served, what  the  law  of  nature  directs  in  every 
circumstance  of  life,  by  considering  what 
method  will  tend  the  most  effectually  to  our 
own  substantial  happiness.  And,  if  our  reason 
were  always,  as  in  our  first  ancestor  before 
his  transgression,  clear  an  perfect,  unruffled 
by  passions,  unclouded  by  prejudice,  unim- 
paired by  disease  or  intemperance,  the  task 
would  be  pleasant  and  easy;  we  should  need 
no  other  guide  but  this.  But  every  man  now 
finds  the  contrary  in  his  own  experience: 
That  his  reason  is  corrupt  and  his  understand- 
ing full  of  ignorance  and  error. 

"This  has  given  manifold  occasion  for  the 
benign  interposition  of  divine  Providence, 
which,  in  compassion  to  the  frailty,  the  im- 


136      MORAL  LAW  AND  CIVIL  LAW 

perfections  and  blindness  of  human  reason, 
hath  been  pleased  at  sundry  times  and  in  di- 
vers manners,  to  discover  and  enforce  His 
laws  by  an  immediate  and  direct  revelation. 
The  doctrines  thus  delivered  we  call  the  re- 
vealed or  divine  law,  and  they  are  to  be  found 
only  in  the  Holy  Scriptures.  These  precepts, 
when  revealed,  are  found  upon  comparison  to 
be  really  a  part  of  the  original  law  of  nature, 
as  they  tend  in  all  their  consequences  to  man's 
felicity.  But  we  are  not  from  thence  to  con- 
clude that  the  knowledge  of  these  truths  was 
attainable  by  reason  in  its  present  corrupt 
state;  since  we  find  that,  until  they  were  re- 
vealed, they  were  hid  from  the  wisdom  of 
ages.  As,  then,  the  moral  precepts  of  this  law 
are  indeed  of  the  same  original  with  those  of 
the  law  of  nature,  so  their  intrinsic  obligation 
is  of  equal  strength  and  perpetuity.  Yet,  un- 
doubtedly, the  revealed  law  is  of  infinitely 
more  authenticity  than  that  moral  system 
which  is  framed  by  ethical  writers  and  de- 
nominated the  'natural  law;'  because  one  is 
the  law  of  nature,  expressly  declared  so  by 
God  Himself;  the  other  is  only  what,  by  the 
assistance  of  human  reason,  we  imagine  to  be 
that  law.  If  we  could  be  as  certain  of  the  lat- 
ter as  we  are  of  the  former,  both  would  have 


PARTS  OF  THE  SAME  THING        137 

equal  authority;  but,  until  then,  they  can 
never  be  put  in  any  competition  together. 

"Upon  these  two  foundations,  the  law  of 
nature  and  the  law  of  revelation,  depend  all 
human  laws;  that  is  to  say,  no  human  laws 
should  be  suffered  to  contradict  these." 

Phelps'  "Judicial  Equity,"  p.  178  and  179; 
last  half  Section  130:  "Beginning  with  the 
primative  conception  of  equity  as  originally 
administered  in  England  by  the  clerical  chan- 
cellors (A.  D.  836?-! 530),  two  distinct  sources 
are  to  be  independently  traced,  to  the  divine 
law  of  morality  upon  the  one  hand,  and  the 
Roman  civil  law  on  the  other." 

Section  131:  "Before  making  this  inquiry, 
it  will  be  found  instructive  to  determine  the 
exact  place  and  value  in  the  standard  English 
literature  of  the  word  'equity'  itself.  For  the 
sake  of  brevity,  it  fortunately  happens  that 
there  may  be  gathered  from  the  English  Bible 
and  Shakespeare  all  that  is  necessary  for  that 
purpose.  In  the  Old  Testament  Scriptures  the 
word  rendered  in  the  standard  English  version 
'equity/  occurs  in  close  connection  (Noscitur 
a  siclis)  with  such  terms  as  'righteousness/ 
'justice/  'judgment/  'wisdom/  'truth/  and  in 
contrast  with  'iniquity/  Sometimes  the  same 
word  is  rendered  in  one  version  'equity/  and 
in  another  'uprightness'  or  'justice/ 

"Collection  of  texts  exhibits  'equity*  in  the 


138       MORAL  LAW  AND  CIVIL  LAW 

Bible  use  as  a  complex  ethical  conception,  cov- 
ering that  department  of  morals  which  incul- 
cates absolute  good  faith,  integrity  and  im- 
partiality ;  equality  of  right  in  theory,  and  fair- 
ness in  practice.  Briefly,  it  stands  for  justice 
in  the  broad  sense  of  the  Roman  law — jus 
suum  cuique  tribuere,  jus  being  understood  in 
opposition  to  lex.  In  the  Bible,  the  word 
'equity'  is  invariably  used  in  the  same  sense." 

Section  132:  "Nothing  was  more  natural 
than  that  the  learned  prelates,  who  held  the 
great  seal,  should  have  taken  the  Bible  mean- 
ing of  'equity'  as  their  standard,  and  looked  to 
the  divine  law  of  morality  as  the  basis  of  their 
system  of  justice.  Of  this  the  evidence  is 
pointed  and  clear. 

"In  the  'Year  Books'  (temp.  H.  7),  Arch- 
bishop Lord  Chancellor  Morton  is  thus  report- 
ed: 'Well  do  I  know  that  every  law  is,  or  of 
right  should  be,  according  to  the  law  of  God, 
and  that  the  law  of  God  forbids  that  an  exe- 
cutor in  bad  faith  waste  all  the  goods  of  his 
testator;  and,  if  he  does  so  without  making 
amends  to  the  extent  of  his  power,  he  shall  be 
damned  in  hell/ 

"So  profoundly  stamped  was  the  system  of 
primitive  equity  with  this  impression,  that  we 
find  the  divine  law  appealed  to  by  the  earlier 
lay  chancellors  in  quite  as  emphatic  terms  as 
by  their  clerical  predecessors.  Ld.  Chan.  Elles- 


PARTS  OF  THE  SAME  THING        139 

mere  (temp.  Eliz.)  :  'The  law  of  God  speaks 
for  the  plaintiff.  By  the  law  of  God,  he  that 
builds  a  house,  ought  to  dwell  in  it;  and  he 
that  plants  a  vineyard,  ought  to  gather  the 
grapes.'  Deut.  28:30:  'And  equity  speaks  as 
the  law  of  God  speaks/  " 

Section  135 :  "Importing  to  this  definition 
of  the  civil  law  the  two  elements  referred  to, 
it  may  be  paraphrased  into  an  approximately 
adequate  conception  of  equity  as  administered 
under  the  ecclesiastical  chancellors.  It  will 
then  read:  'Equity  jurisprudence  was  that 
system  of  justice  founded  on  the  ethics  of 
the  Bible  and  of  the  Roman  law  which  was  in- 
troduced by  the  chancellors  for  the  public  con- 
venience, to  assist  or  supplement  the  defici- 
encies and  to  correct  the  rigors  of  the  common 
law/' 

Section  136:  "For  more  than  three  centuries 
(1530 — 1875))  the  administration  of  equity  in 
England  was  in  the  hands  of  chancellors 
trained  in  the  schools  of  the  common  law.  It 
was  imported  into  America  and  became  a  dis- 
tinct part  of  the  jurisprudence  of  many  sepa- 
rate states  as  well  as  of  the  Federal  Union. 
It  has  been  elaborated  into  a  system  'of  almost 
infinite  complexity  and  variety/  It  is  scarcely 
necessary  to  state  that  it  is  with  modern 
equity,  in  its  present  state  of  development, 
that  we  are  practically  concerned.  It  is  not  in 


140      MORAL  LAW  AND  CIVIL  LAW 

any  crude,  primitive  form  that  we  are  to  look 
for  the  essential  nature  of  equity,  but  rather 
in  its  maturity.  Its  doctrines  and  rules  are 
progressive,  they  are  refined  and  improved  by 
use,  they  accomodate  themselves  to  changed 
conditions  of  society  and  new  methods  of  busi- 
ness and  intercourse,  and  are  to  be  found  in 
modern  rather  than  ancient  cases." 

Huxley  in  "Nineteenth  Cent.,"  June,  1889, 
p.  940:  "All  that  is  best  in  ethics  of  the 
modern  world,  in  so  far  as  it  has  not  grown  out 
of  Greek  thought  or  Barbarian  method,  is  the 
direct  development  of  the  ethics  of  the  old 
Israel.  There  is  no  code  of  legislation,  ancient 
or  modern,  at  once  so  just  and  so  merciful,  so 
tender  to  the  weak  and  poor,  as  the  Jewish 
law." 

Rutherford's  "Institutes,"  Vol.  n,  p.  228: 
"Upon  the  whole,  therefore,  a  number  of  indi- 
viduals, by  joining  in  a  social  compact,  oblige 
themselves  to  act  together,  for  the  purpose  of 
obtaining  the  common  good  of  all  and  the 
particular  good  of  each,  as  far  as  the  particular 
good  of  anyone  is  consistent  with  the  common 
good  of  all  and  with  the  particular  good  of 
others.  But,  where  a  number  of  persons  bind 
themselves  to  act  jointly  for  any  purpose,  the 
common  understanding  of  such  society  is  their 
guide,  in  respect  of  what  they  are  to  do  and 
what  they  are  to  avoid  in  order  to  obtain  these 


PARTS  OF  THE  SAME  THING       141 

purposes.  A  civil  society,  therefore,  has  a 
right,  by  its  common  understanding,  thus  to 
guide  itself  and  its  several  members.  And, 
since  the  legislative  power  of  such  society 
consists  in  the  right,  it  follows  that  whatso- 
ever is  necessary  or  conducive  to  the  common 
good  of  the  society,  or  to  the  particular  good 
of  the  several  members,  as  far  as  the  particular 
good  of  any  one  is  consistent  with  the  common 
good  of  all  and  with  the  particular  good  of 
others,  it  is  the  proper  object  of  legislative 
power.  Now,  civil  laws  are  nothing  else  but 
such  rules,  as  the  legislative  power  of  a  civil 
society  establishes  for  the  direction  of  all  and 
each  of  its  members.  Whatever,  therefore,  is 
the  proper  object  of  civil  legislative  power,  it 
is  likewise  the  proper  matter  of  civil  laws." 

Sander's  "Justinian"  (Introduction),  p.  15: 
"By  far  the  most  important  addition  to  the 
system  of  Roman  law  which  the  jurists  intro- 
duced from  Greek  philosophy,  was  the  con- 
ception of  lex  naturae. 

"We  learn  from  the  writings  of  Cicero 
whence  this  conception  came  and  what  was 
understood  by  it.  It  came  from  the  Stoics, 
and  especially  from  Chrysippus.  By  Natura, 
for  which  Cicero  sometimes  substitutes  min- 
dus,  wa~  meant  the  universe  of  things,  and 
this  universe  the  Stoics  declared  to  be  guided 
bv  reason.  But  as  reason  is  thus  a  directive 


142      MORAL  LAW  AND  CIVIL  LAW 

power,  forbidding  and  enjoining,  it  is  called 
law  (lex  est  ratio  summa  insitia  in  nature, 
quea  ea  quea  facienda  sunt  prohibetique  con- 
traria).  But  nature  is,  with  the  Stoics,  both 
an  active  and  a  passive  principle,  and  there  is 
no  source  of  law  of  nature  beyond  nature  itself. 
By  lex  naturae,  therefore,  was  meant  primarily 
the  determining  force  of  the  universe,  a  force 
inhe  rent  in  the  universe  by  its 
constitution  (lex  est  naturae  vis).  But  man 
has  reason ;  and,  as  reason  cannot  be  two-fold, 
the  ration  of  the  universe  must  be  the  same  as 
the  ration  of  man,  and  the  lex  naturae  will  be 
the  law  by  which  the  actions  of  men  are  to  be 
guided,  as  well  as  the  law  directing  the  uni- 
verse. Virtue,  or  moral  excellence,  may  be 
described  as  living  in  accordance  with  reason 
or  with  the  law  of  the  universe.  These  notions 
worked  themselves  into  Roman  law,  and  the 
practical  shape  that  they  took  was  that  mo- 
rality, so  far  as  it  could  come  within  the  scope 
of  the  judges,  was  regarded  as  enjoined  by 
law.  The  jurists  did  not  draw  any  sharp  line 
between  law  and  morality.  As  lex  naturae 
was  a  lex,  it  must  have  a  place  in  the  law  of 
Rome.  The  praetor  considered  himself  bound 
to  arrange  his  decisions  so  that  no  strong  moral 
claims  should  be  disregarded.  He  had  to  give 
effect  to  the  lex  naturae,  not  only  because  it 
was  morally  right  to  do  so,  but  also  because 


PARTS  OF  THE  SAME  THING        143 

the  lex  naturae  was  a  lex.  When  a  rigid  ad- 
herance  to  the  doctrines  of  the  jus  civile 
threatened  to  do  a  moral  wrong  and  produce  a 
result  that  was  not  equitable,  there  the  lex 
naturae  was  supposed  to  operate  and  the 
praetor,  in  accordance  with  its  dictates,  pro- 
vided a  remedy  by  means  of  the  pliant  forms 
of  the  praetorian  actions. 

"Gradually  the  cases,  as  well  as  the  modes  in 
which  he  would  thus  interfere,  grew  more  and 
more  certain  and  recognized,  and  thus  a  body 
of  equitable  principles  was  introduced  into 
Roman  law.  The  two  great  agents  in  modify- 
ing and  extending  the  old,  rigid,  narrow  sys- 
tem of  the  jus  civile  were  thus  the  jus  gentium 
and  the  lex  naturae  that  are  generalizations 
from  the  legal  systems  of  other  nations;  and 
morality  was  looked  on,  according  to  the  phil- 
osophy of  the  Stoics,  as  sanctioned  by  a  law. 
But  as,  on  the  other  hand,  the  generalizations 
from  experience  had  in  themselves  no  binding 
force,  and  as,  on  the  other  hand,  the  best  index 
to  ascertain  what  morality  commended,  was  to 
examine  the  contents  of  other  legal  systems, 
the  jus  gentium  and  the  lex  naturae  were  each 
the  complement  of  the  other,  and  were  often 
looked  on  by  the  jurists  as  making  one  whole 
to  which  the  term  jus  gentium  was  generally 
applied." 

The  common  law  contained  a  code  and  sys- 


144      MORAL  LAW  AND  CIVIL  LAW 

tern  of  morality.  What  ever  that  code  and 
system  were,  became  the  code  and  system  of 
Indiana  to  the  extent  of  the  moral  principles 
involved,  not  only  by  the  law  of  nations  but 
also  by  specific  adoption  and  recognition  in  our 
constitution.  The  same  principle  applies  in 
all  other  states.  The  common  law  of  England 
traces  morality  as  a  legal  principle  back  to  the 
law  of  nature,  to  the  law  of  God,  as  the  au- 
thorized source  of  morality.  Where  there  has 
been  any  dissent  from  this  view  of  the  un- 
broken chain  in  the  descent  of  this  legal  prin- 
ciple, such  contrary  view  has  been  without 
any  substantial  support  and  of  short  duration. 
When  the  word  "morality"  was  used  in  our 
constitution,  it  was  used  as  a  legal  term  de- 
rived from  the  common  law  and  to  be  under- 
stood in  the  common  law  sense,  usage,  history 
and  interpretation.  In  fact,  morality  is  the 
foundation  principle  of  the  common  law  and 
stands  in  the  state  constitutions  in  the  same 
position  it  occupied  in  the  common  law. 


PARTS  OF  THE  SAME  THING       145 


CHAPTER   VIII. 
Morality  In  Civil  Court. 

THE  moral  law,  with  its  rules  and  stand- 
ard established  by  the  learning,  experi- 
ence, religious  teaching,  divine  revela- 
tion, and  judicial  decisions  of  the  past,  is  as 
binding  upon  the  citizens  as  the  civil  law,  be- 
cause it  is  a  part  of  the  civil  law.  Every  legis- 
lator, every  governor,  every  judge,  every  law- 
yer, in  entering  upon  the  duties  of  his  office, 
holds  up  his  hand  toward  heaven  and  takes 
an  oath  to  obey  the  constitution  and  to  per- 
form the  duties  of  his  position,  so  help  him 
God.  This  appeal  for  help  to  God  means 
something.  It  is  not  an  empty  form.  Either 
it  is  blasphemy,  in  taking  the  name  of  God  in 
vain,  or  is  mockery,  or  is  an  idle  performance, 
or  it  is  the  most  solemn  ceremony  that  can  be 
performed.  The  person  by  whom  this  obliga- 
tion is  administered  and  the  person  to  whom 
it  .3  administered  are  dissembling  and  are 
playing  the  role  of  the  arrant  hypocrite,  or  else 
they  are  acting  the  part  of  the  highest  citizen- 
ship and  highest  patriotism.  It  is  very  clear 


146       MORAL  LAW  AND  CIVIL  LAW 

that  Almighty  God  will  not  help  the  legislator, 
nor  the  governor,  nor  the  judge,  nor  the  at- 
torney in  any  way  to  establish,  or  protect,  or 
excuse  any  business,  or  transaction,  or  thing 
that  is  against  morality.  Even  if  the  Legisla- 
ture does  attempt  to  give  sanction  and  con- 
fer its  authority  upon  any  enterprise  which  is 
immoral  in  its  nature  or  which  results  in  im- 
morality, then  the  governor  and  the  judge 
have  each  an  oath  registered  in  heaven 'to  de- 
clare such  legislation  void.  The  United  States 
Supreme  Court  in  the  case  of  Mugler  vs.  Kan- 
sas, 123  U.  S.,  205,  has  defined  the  duty  of  the 
court  in  such  a  case  as  follows : 

"The  courts  are  not  bound  by  mere  forms, 
nor  are  they  to  be  misled  by  mere  pretenses. 
They  are  at  liberty,  indeed,  are  under  a  sol- 
emn duty,  to  look  at  the  substance  of  things 
whenever  they  enter  upon  an  inquiry  whether 
the  Legislature  has  transcended  the  limits  of 
its  authority.  If,  therefore,  a  statute  purport- 
ing to  have  been  enacted  to  protect  the  public 
health,  public  morals,  the  public  peace,  or  the 
public  safety,  has  no  real  or  substantial  rela- 
tion to  these  subjects,  or  is  a  palpable  inva- 
sion of  rights  secured  by  the  fundatmental  law, 
it  is  the  duty  of  the  court  to  so  declare,  and 
thereby  give  effect  to  the  Constitution." 

Nothing  has  contributed  to  bring  courts  and 
the  legal  profession  into  disrepute,  thereby 


PARTS  OF  THE  SAME  THING        147 

encouraging  mobs  and  white-cap  proceedings 
so  much  as  the  general  impression  that  morali- 
ty has  not  a  place  in  judicial  proceedings,  eith- 
er in  fact  or  in  theory. 

In  recent  years  the  town  of  Roby,  Indiana, 
has  become  distinguished  as  a  location  of  en- 
terprises of  stupendous  character  for  gambling 
and  depravity  of  all  kinds.  I  have  been  great- 
ly interested  in  the  discussion  through  the  pub- 
lic press  and  in  the  expressions  quoted  from  at- 
torneys which  assert  that  these  things  have 
been  authorized  by  an  act  of  the  Legislature, 
and  therefore  could  not  be  prevented.  It  would 
be  very  difficult  to  ascertain  just  how  such  con- 
clusion was  reached.  As  an  illustration,  one 
would  infer  that  it  had  been  reached  by  turn- 
ing the  pages  of  our  statutes  looking  for  an 
enactment  concerning  Roby,  Jackson,  and  Cor- 
bett.  Finding  no  act  upon  either  of  these  spe- 
cifically, it  was  then  declared  that,  as  there 
was  no  act  upon  this  subject,  therefore  James 
Corbett  and  Peter  Jackson  could  proceed  with 
a  prize  fight  at  Roby  without  any  restraint 
from  the  law.  While  opinions  upon  this  basis 
were  being  freely  given  a  Chinaman  was  ar- 
rested in  the  city  of  Indianapolis  for  the  es- 
tablishment and  maintenance  of  an  opium- 
smoking  joint.  He  was  brought  before  the 
court  upon  a  criminal  charge  for  that  offense. 
The  same  class  of  attorneys  and  self-styled 


148      MORAL  LAW  AND  CIVIL  LAW 

profound  investigators  of  legal  principles,  fig- 
uratively speaking,  turned  the  pages  of  the 
statutes  of  the  State  of  Indiana  and  the  ordi- 
nances of  the  city  of  Indianapolis  looking  for 
enactments  in  regard  to  Chinamen  and  opium- 
smoking  joints.  The  found  no  such  laws. 
They  found  no  allusions  to  Chinamen  or  to 
opium-smoking  joints  in  the  statutes  of  the 
State  or  in  the  ordinances  of  the  city;  but  the 
Chinaman  was  convicted,  fined  $500,  and  sent 
to  the  workhouse  for  six  months.  That  case 
was  clearly  sustained  by  law,  though  not  one 
word  in  regard  to  the  offenses  charged  could 
be  found  in  any  law  book,  or  statute,  or  city 
ordinance.  The  penalty,  however,  was  too  se- 
vere. The  case  was  founded,  and  properly  so, 
upon  the  immorality  of  the  Chinaman's  busi- 
ness and  its  bad  affect  upon  the  public  health 
and  public  morals.  No  legislative  act  could  be 
passed  that  could  authorize  or  protect  such  a 
business.  Neither  could  any  act  be  passed, 
however  solemn  its  form,  that  would  protect 
the  exhibitions  at  Roby. 

As  no  act  of  immorality  can  be  lawful  or 
protected  by  legislation,  so  no  decision  of  a 
court  can  long  stand  that  in  any  way  favors, 
protects,  or  excuses  immorality.  No  act  of 
the  Legislature  that  contemplates  or  results 
in  promoting1  immorality  can  be  valid. 

The  judicial  is  the  most  important  branch 


PARTS  OF  THE  SAME  THING        149 

of  any  government.  I  have  called  attention  to 
the  fact  in  a  former  chapter  that  legislative 
bodies  were  liable  not  to  feel  themselves  bound 
by  fixed  and  settled  rules  or  precedents,  and 
were  liable  to  act  upon  the  impression  of  their 
entire  independence.  This  can  never  be  the  im- 
pression under  which  courts  of  justice  act. 
Courts  are  bound  by  rules  and  principles  that 
have  been  recognized  and  developed  by  the 
learning,  experience,  and  integrity  of  thousands 
of  years,  and  are  stronger  to-day  in  their  bind- 
ing force  than  they  were  when  Columbus  dis- 
covered America.  The  most  salutary  rules  of 
law,  or,  properly  speaking,  the  most  salutary 
laws,  were  never  enacted  by  any  Legislature, 
but  have  been  developed  by  judicial  decisions. 
These  rules  have  been  settled  by  the  most  pro- 
found learning  and  experience ;  have  been  thor- 
oughly considered,  tested,  applied  to  emer- 
gencies, and  are  established.  Courts,  in  the  ap- 
plication of  these  rules,  have  differed  some- 
times, misapplied,  overruled  their  own  deci- 
sions, and  readjusted  their  views  to  meet  the 
requirements  of  these  great  principles. 

We  have  often  had  occasion  in  Indiana,  as 
has  been  the  case  in  other  States,  to  apply  the 
rules  of  common  law  to  questions  where  there 
has  been  no  statutory  provision,  and  these 
emergencies  are  likely  to  arise  in  all  the  future. 
There  is  one  distinct,  \wll-defined  principle 


150      MORAL  LAW  AND  CIVIL  LAW 

running  through  the  civil  law — the  law  of 
Rome — reaching  beyond  the  Christian  era, 
older  than  constitutions  and  republican  forms 
of  government,  and  maintained  continuously 
down  through  all  existing  systems  by  judicial 
tribunals,  that  morality  is  to  be  conserved  in 
all  judicial  actions.  It  is  true  that  the  compre- 
hension of  morality  was  sometimes  vague,  yet 
as  comprehended,  it  was  regarded  as  funda- 
mental. The  time  and  attention  of  courts,  in 
the  United  States  especially,  are  very  largely 
required  in  an  effort  to  construe  and  apply 
well-settled  rules  of  law  to  crude  and  badly- 
considered  legislative  acts,  considered  and 
passed  by  legislative  bodies  composed  of  men 
who  know  little  or  nothing  of  legal  principles. 
However  ignorant  or  depraved  the  Legislature 
may  be,  courts  are  bound  to  accept  its  acts  as 
the  law,  if  they  are  harmonious  with  the  Con- 
stitution, by  using  all  presumptions  in  their  fa- 
vor that  are  consistent  with  fundamental  prin- 
ciples. 

The  government  expects  and  demands  the 
exertion  of  each  of  its  departments  in  one  har- 
monious effort  to  promote  the  purposes  for 
which  it  exists.  The  departments  of  govern- 
ment— executive,  legislative,  and  judicial — can 
only  act  legally  within  the  respective  scope  of 
each  department.  Each,  however,  has  to  do 
with  the  enactment  of  laws,  so  far  as  legislation 


PARTS  OF  THE  SAME  THING        151 

is  concerned.  The  judicial  department,  how- 
ever, has  not  only  the  duty  and  responsibility 
of  construing  and  declaring  and  settling  the 
law  as  it  is  represented  in  legislative  acts,  but 
has  also  to  apply  these  ancient  principles  of 
the  common  law  in  many  cases,  and,  in  addi- 
tion thereto,  the  rules  of  what  is  generally 
termed  "public  policy;"  in  other  words,  "The 
law  of  public  necessity."  The  rules  of  public 
policy,  or,  what  is  the  same  thing,  the  law  of 
public  necessity,  are  limited  only  by  the  ex- 
tent of  the  necessity.  There  is  set  up  before 
each  department  of  the  government,  however, 
a  standard  for  its  guidance.  This  standard  is 
public  morality.  It  must  measure  and  weigh 
every  act.  It  is  the  one  standard,  and  the  only 
one,  that  commands  obedience  in  all  respects. 

In  1840  the  Supreme  Court  of  Indiana  was 
composed  of  three  judges,  each  of  remarkable 
ability  and  high  moral  and  religious  character. 
Without  disparagement  to  the  reputation  of 
any  of  the  learned  and  good  men  who  have 
occupied  the  Supreme  Bench  in  our  State,  I 
can  assert,  without  offense,  that  that  high  court 
has  never  been  composed  of  men  superior  in 
all  regards  to  Judges  Isaac  Blackford,  Jere- 
miah Sullivan,  and  Charles  Dewey. 

In  the  case  of  Watts,  et  al.  vs.  Pratt,  5th 
Blackford,  337,  Judge  Dewey  delivered  the 
unanimous  opinion  of  the  court  in  concise  and 


152      MORAL  LAW  AND  CIVIL  LAW 

clear  language,  defining  the  rule  of  law  gov- 
erning courts  in  such  cases,  in  the  following 
language:  "The  subject  of  this  law  is  to  pro- 
tect the  public  morals  and  preserve  the  peace 
and  quiet  of  society;  being  designed  for  the 
public  good,  it  should  be  so  construed  as  to 
promote  it." 

I  quote  again  in  this  place  what  I  have  pre- 
viously quoted  from  the  Supreme  Court  of 
the  United  States,  because,  this  being  the 
highest  tribunal  in  the  nation,  its  decision 
must  be  taken  as  the  settled  law,  and  I  need 
not  support  the  proposition  further  by  the  cita- 
tion of  many  cases,  as  I  would  otherwise  feel 
compelled  to  do.  The  court  defines  the  duties 
of  courts  as  follows : 

"The  courts  are  not  bound  by  mere  forms, 
nor  are  they  to  be  misled  by  mere  pretenses. 
They  are  at  liberty,  indeed,  are  under  a  sol- 
emn duty,  to  look  at  the  substance  of  things 
whenever  they  enter  upon  an  inquiry  whether 
the  Legislature  has  transcended  the  limits  of 
its  authority.  If,  therefore,  a  statute  purport- 
ing to  have  been  enacted  to  protect  the  public 
health,  the  public  morals,  the  public  peace,  or 
the  public  safety,  has  no  real  or  substantial 
relation  to  these  subjects,  or  is  a  palpable  in- 
vasion of  rights  secured  by  the  fundamental 
law,  it  is  the  duty  of  the  court  to  so  declare, 
and  thereby  give  effect  to  the  Constitution." 


PARTS  OF  THE  SAME  THING        153 

What  is  designated  in  law  as  public  policy 
is  a  matter  of  such  uncertainty,  and  about 
which  there  is  so  little  general  information, 
that  I  feel  called  upon  to  offer  some  explana- 
tions of  this  term,  because  it  is  the  duty  of  the 
courts  to  determine  what  is  public  policy,  and 
where  it  applies.  In  American  and  English 
Encyclopedia  of  Law,  Vol.  IX,  page  880,  un- 
der the  heading  "Public  Policy  Explained," 
the  following  explanation  is  given : 

"This  term  is  equivalent  to  the  policy  of  the 
law.  It  is  applicable  to  the  spirit  as  well  as 
to  the  letter.  Whatever  tends  to  injustice  or 
oppression,  restraint  of  liberty,  commerce,  and 
natural  or  legal  rights,  whatever  tends  to  the 
obstruction  of  justice  or  to  the  violation  of 
the  statute,  and  whatever  is  against  good  mor- 
als when  made  the  object  of  a  contract,  is 
against  public  policy,  and  therefore  void,  and 
not  capable  of  enforcement.  A  form  of  con- 
tract may  be  legal  on  its  face.  There  may  be 
parties,  competent,  willing,  and  agreed  upon 
the  subject-matter,  who  enter  into  an  agree- 
ment to  do  or  not  to  do,  with  an  apparently 
fair  consideration  stipulated,  but  their  agree- 
ment is  null  and  futile  if  its  object  is  judicially 

immoral  or  against  the  policy  of  law 

In  construing  contracts,  courts  hold  entirely 
void  those  that  are  partly  illegal  in  their  ob- 
ject. Legal  stipulations  are  treated  as  unwrit- 


154       MORAL  LAW  AND  CIVIL  LAW 

ten  when  interwoven  with  others  designed  to 
controvene  the  law,  or  tending  to  that  end. 
An  illegal  consideration  will  not  be  analyzed 
or  dissected  so  as  to  separate  good  simples 
from  bad,  when  the  compound  is  noxious,  ren- 
dering the  object  of  the  contract  unlawful." 

Bishop,  on  Contracts,  sec.  467,  speaking  of 
the  rule  of  law  as  applied  by  courts,  says : 

"Contracts,  illegal  or  of  evil  tendency,  im- 
moral or  contrary  to  the  policy  of  the  law,  or 
to  public  policy;  agreements  between  parties 
to  do  a  thing  prohibited  by  law,  or  subversive 
of  public  interest,  which  the  law  cherishes; 
forbidden  either  by  the  common  or  the  statu- 
tory law,  whether  it  is  malum  in  se,  or  merely 
malum  prohibitum,  indictable  or  only  subject 
to  the  penalty  of  forfeiture ;  or  however  other- 
wise prohibited  by  statute  or  the  common 
law,"  are  void. 

Courts  look  at  the  result  from  the  execution 
of  contracts,  and  if  they  result  in  immorality 
they  are  void,  though  they  may  seem  to  be 
harmless.  In  the  case  of  Riley  vs.  Gordon,  122 
Mass.,  231,  the  court  says: 

"A  contract  may  be  illegal,  though  fair  on 
its  face." 

No  gambling  contract  or  contract  having  an 
immoral  consideration  or  contract  to  compel 
the  performance  of  an  immoral  act,  nor  the 
payment  of  money  for  an  immoral  act  per- 


PARTS  OF  THE  SAME  THING        155 

formed,  can  be  enforced  in  court.  It  is  a  max- 
im of  the  law,  especially  of  equity,  that  the 
litigant  who  institutes  an  action  in  court  must 
come  with  clean  hands. 


PARTS  OF  THE  SAME  THING        157 


CHAPTER   IX. 
Morality   Is   Fundamental   Law. 

SHELDON,  Amos,  A.  M.  Professor  of  Juris- 
prudence in  the  University  College,  Lon- 
don, Tutor  to  the  Inner  Temple  of  Juris- 
prudence, Civil  Law  and  International  law  in  a 
work  published  in  1872,  entitled  "Systematic 
View  of  the  Science  of  Jurisprudence,"  Vol.  i,p. 
515,  says:  "The  purpose  of  the  law  is  to  for- 
tify and  to  maintain  public  morality,  and  not 
to  create  and  invent  it;  give  solidity  and  per- 
manence to  the  essential  relationship  on  which 
national  life  depends,  and  not  to  be  the  forma- 
tion of  their  vital  energy;  to  secure  for  every 
man  and  woman,  for  the  creation  of  rights  and 
duties,  a  clear  and  open  space  for  unrestricted 
action,  within  which  they  are  free  to  develop 
all  their  faculties  without  hindrance  or  intru- 
sion from  without;  and  to  uphold  the  security 
of  such  institutions  as  the  voluntary  efforts  of 
mankind  may  devise  or  adopt,  as  seems  to 
them  best  calculated  to  quicken  or  develop  or 
invigorate  the  moral  aspirations  of  the  race." 
Bishop,  for  thirty  years  recognized  in  the 


158      MORAL  LAW  AND  CIVIL  LAW 

United  States  as  a  standard  authority  on  crim- 
inal law,  in  his  work  on  that  subject  says,  Sec- 
tion 495 :  "Morality,  religion  and  education 
are  the  three  pillars  of  the  state  and  the  sub- 
stance of  all  private  good.  A  community  from 
which  they  are  banished  represents  more  than 
the  gloom  of  original  chaos.  Therefore,  they 
should  be  the  objects  of  primary  regard  by  the 
law." 

Also  Section  500:  "But,  however  uncertain 
may  be  the  precise  extent  to  which  the  common 
law  protects  Christianity,  there  is  no  question 
that  it  practically  and  fully  cherishes  the  pub- 
lic morals.  And  it  punishes  as  a  crime  every 
act  which  it  deems  sufficiently  evil  and  direct, 
tending  to  impair  the  public  morals." 

The  same  author  in  his  work  on  "Contracts," 
enlarged  edition,  Section  505,  says:  "Promi- 
nent among  the  interests  which  the  law  pro- 
tects, are  the  public  morals." 

In  the  case  of  Stanton  vs.  Allen,  5  Denio 
(New  York  Report),  p.  434,  the  Court  of  Ap- 
peals of  New  York  said :  "Sound  morality  is 
the  cornerstone  of  the  social  edifice — whatever 
disturbs  that,  is  condemned  under  the  funda- 
mental rule." 

In  Forbes  vs.  Cochrane,  2  Barnewall  & 
Crosswell's  Reports  (English)  471,  the  Court 
said  (1824):  "The  proceedings  in  our  courts 
are  founded  upon  the  law  of  England,  and 


PARTS  OF  THE  SAME  THING        159 

that  law  is  again  founded  upon  the  law  of  na- 
ture and  the  revealed  law  of  God.  If  the  right 
sought  to  be  enforced  is  inconsistent  with  eith- 
er of  these,  the  English  municipal  courts  can- 
not recognize  it.  It  take  it  that  that  principle 
is  acknowledged  by  the  laws  of  all  Europe." 

The  same  Court  comments  on  certain  acts 
of  Parliament,  recognizing  and  encouraging 
slavery,  as  follows  (p.  470)  :  "If,  indeed,  there 
had  been  any  express  law,  commanding  us  to 
recognize  those  rights,  we  might  then  have 
been  called  upon  to  consider  the  propriety  of 
that  which  has  been  said  by  the  great  com- 
mentator upon  the  law  of  this  country;  that, 
"If  any  human  law  should  allow  or  enjoin  us 
to  commit  an  offense  against  the  divine  law, 
we  are  bound  to  transgress  that  human  law/' 

"It  appears  to  have  been  recognized  by  the 
French  courts  in  the  celebrated  case  alluded 
to  by  Mr.  Hargrave  in  his  argument  in  the 
Somerset  case.  Mr.  Justice  Blackstone,  in  his 
'Commentaries',  Vol.  i,  p.  42,  says:  'Upon 
the  law  of  nature  and  the  law  of  revelation, 
depend  all  human  laws;  that  is  to  say,  no  hu- 
man law  should  be  suffered  to  contradict 
these.'  " 

Pomeroy's  "Equity  Jurisprudence,"  Vol.  I, 
last  half  of  Section  63 :  "It  is  true  that  many 
of  the  precepts  of  this  moral  code  relate  to 


160      MORAL  LAW  AND  CIVIL  LAW 

mankind  considered  as  members  of  an  organ- 
ized society — the  State — and  prescribe  the  ob- 
ligations which  belong  to  them  as  component 
parts  of  a  national  body;  and,  therefore,  these 
precepts  are  jural  in  their  nature  and  design, 
and  the  duties  which  they  impose  upon  indi- 
viduals are  of  the  same  kind  as  those  imposed 
by  the  human  authority  of  the  State.  It  is 
also  true  that  human  legislation  ought  to  con- 
form itself  to,  and  embody,  these  jural  precepts 
of  the  coral  code;  every  legislator,  whether  he 
legislate  in  a  Parliament  or  on  the  judicial 
bench,  ought  to  find  the  source  and  material 
of  the  rules  he  lays  down  in  these  principles  of 
morality;  and  it  is  certain  that  the  progress 
towards  a  perfection  of  development  in  every 
municipal  law,  consists  in  its  gradually  throw- 
ing off  what  is  arbitrary,  formal  and  unjust, 
and  its  adopting,  instead,  those  rules  and  doc- 
trines which  are  in  agreement  with  the  eternal 
principles  of  right  and  morality.  But  it  is  no 
less  true  that  this  work  of  legislation  has  been 
done,  until  the  human  lawgiver  has  thus  bor- 
rowed the  rules  of  morality  and  embodied 
them  into  the  municipal  jurisprudence  by  giv- 
ing them  human  sanction  and  morality  is  bind- 
ing upon  the  citizens  of  a  State  as  a  part  of 
the  law  of  that  State.  In  every  existing  mu- 
nicipal law  belonging  to  a  civilized  nation, 
this  work  of  adaptation  and  incorporation 


PARTS  OF  THE  SAME  THING        161 

has  been  performed  to  a  greater  or  less  degree." 
Section  65 :  "  'Equity'  alone  does  not  em- 
brace all  the  jural  moral  precepts  which  have 
been  made  active  principles  in  the  municipal 
jurisprudence.  The  'law/  even  the  'common 
law',  as  distinct  from  statutory  legislation,  has, 
in  the  course  of  its  development,  adopted  moral 
rules,  principles  of  natural  justice  and  equity, 
notions  of  abstract  right,  as  the  foundations  of 
its  doctrines,  and  has  infused  them  into  the 
mass  of  its  particular  rules.  Unquestionably, 
at  an  early  day  the  common  law  of  England 
had  comparatively  little  of  this  moral  element ; 
it  abounded  in  arbitrary  dogmas — as,  for  exam- 
ple, the  effect  given  to  the  presence  or  absence 
of  a  seal ;  but  this  was  the  fault  of  the  age,  and 
the  sin  was  chiefly  one  of  omission ;  the  ancient 
law  was,  after  all,  rather  unmoral  than  im- 
moral. 

"But  this  has  been  changed,  and  at  the  pres- 
ent day  a  large  part  of  the  'law*  is  motived  by 
consideration  of  justice,  based  upon  notions  of 
right  and  permeated  by  equitable  principles,  as 
truly  and  to  as  great  an  extent  as  the  comple- 
mentary department  of  the  national  jurisprud- 
ence which  is  technically  called  'equity.'  This 
work  of  elevating  the  law  has  been  accomplished 
by  two  distinct  agencies,  judicial  legislation 
and  parliamentary  legislation.  At  the  present 
day  the  latter  agency  is  the  most  active  and  by 


162      MORAL  LAW  AND  CIVIL  LAW 

far  the  most  productive;  but,  prior  to  the  epoch 
of  conscious  legal  reform  which  begun  in  Eng- 
land about  1830,  and  at  a  considerably  earlier 
day  in  this  country,  the  great  work  of  legis- 
lation within  the  domain  of  private  law,  except 
in  a  few  prominent  instances,  such  as  the  Stat- 
ute of  Uses,  of  Wills,  etc.,  was  done  by  the 
law  courts.  In  expanding  the  law,  the  judges 
in  later  times  have  designedly  borrowed  the 
principles  from  the  moral  code,  and  constructed 
their  rules  so  as  to  be  just  and  righteous.  The 
Legislature  has  also  conformed  the  modern 
statutes  to  the  precepts  of  a  high  morality,  and 
their  legislation  has  tended  to  correct  any  mis- 
takes and  to  suply  any  omissions  in  the  body 
of  rules  constructed  by  the  legislative  func- 
tions of  the  courts." 

Middle  part  of  Section  67:  "On  account  of 
the  somewhat  arbitrary  and  harsh  nature  of  the 
common  law  in  its  primitive  stage,  these  doc- 
trines and  rules  of  equity  were  intentionally 
and  consciously  based  upon  the  precepts  of 
morality  by  the  early  chancellors  who  bor- 
rowed the  jural  principles  of  the  moral  code 
and  openly  incorporated  them  into  their  ju- 
dicial legislation.  This  origin  gave  to  the  sys- 
tem which  we  call  'equity*  a  distinctive  charac- 
ter which  it  has  ever  since  preserved.  Its  great 
underlying  principles,  which  are  the  constant 
sources,  the  never-failing  roots,  of  its  particu- 


PARTS  OF  THE  SAME  THING        163 

lar  rules,  are  unquestionably  principles  of  right, 
justice  and  morality,  so  far  as  the  same  can  be- 
come the  elements  of  a  positive  human  juris- 
prudence; and  these  principles,  being  incor- 
porated into  the  system,  and  being  essentially 
unlimited,  have  communicated  their  own  vi- 
tality and  power  of  adaptation  to  the  entire 
branch  of  the  national  jurisprudence,  of  which 
they  are,  so  to  speak,  the  super-structure." 

Dr.  Francis  Lieber  was  educated  and  re- 
ceived high  cultivation  in  the  schools  of  France. 
Among  his  other  works  was  his  "Manual  of 
Political  Ethics"  (morality)  which  he  wrote 
and  published  in  1878.  Chancellor  Kent  says, 
in  approval  of  this  work :  "Dr.  Francis  Lieber, 
in  his  'Manual  of  Political  Ethics/  has  shown 
with  great  force  and  by  the  most  striking  and 
opposite  illustrations,  the  original  connections 
between  right  and  morality,  and  the  reason  or 
the  necessity  for  the  application  of  the  princi- 
ples of  ethics  (morality)  to  the  sciences  of 
politics  and  administration  of  government.  The 
work  is  excellent  in  its  doctrines,  and  it  is  en- 
riched with  various  and  profound  erudition." 

"Right  and  Law/'  by  George  H.  Smith,  p. 
71 :  "It  seems,  indeed,  that  part  of  the  very 
nature  and  constitution  of  man  that  his  actions 
shall  in  the  main  be  immediately  determined 
by  custome  and  habit ;  and  hence,  using  the 
term  in  its  widest  sense,  as  including  not  only 


164       MORAL  LAW  AND  CIVIL  LAW 

simple  customs,  but  also  those  which  are  ac- 
companied by  a  conviction  of  their  moral  rec- 
self  (jurispudence  as  a  branch  of  morality) 
depends  mainly  upon  custom  for  its  practical 
operation ;  though  it  is  the  function  of  morality 
as  a  science  to  judge  of  the  rectitude  of  cus- 
toms, and  as  an  art  to  correct  and  reform 
them." 

Note  2,  p.  71 :  "Customs  are  made  by  time 
and  usage,  and  do  obtain  the  force  of  laws  in 
particular  places  and  nations;  but  not  other- 
wise than  upon  the  supposition  that  they  were 
reasonable  at  the  beginning." 

Page  73,  Section  85:  "Nearly  all  questions 
as  to  rights  (as  will  be  shown  more  fully  here- 
after) may  be  determined  by  the  above  princi- 
ples. Where  doubtful  questions  arise  which 
cannot  be  determined,  the  principles  of  utility 
must  be  resorted  to;  for  all  theories  of  right 
unite  in  the  proposition  that  conformity  to 
right  must  conduce  to  the  welfare  of  mankind ; 
and  utility,  or  tendency  to  promote  that  wel- 
fare, may,  therefore,  be  assumed  to  be,  if  not 
of  the  essence,  at  least  as  a  property,  of  right, 
and,  therefore,  universally  to  be  affirmed  of  it. 
It,  therefore,  follows  that  nothing  which  is  per- 
nicious, or  contrary  to  utility,  can  be  right." 

Page  73,  Section  87 :  "The  principle  of  utili- 
ty in  the  negative  form  in  which  we  have 
stated  it,  is  embodied  under  the  name  of  the 


PARTS  OF  THE  SAME  THING        165 

argumentum  ab  inconvenienti,  in  one  of  the 
fundamental  mixims  of  our  law;  and  there  are 
few  principles  more  frequently  referred  to  and 
relied  upon  by  jurists  than  this.  The  maxim  as 
given  by  Coke  is,  'Argumentum  ab  inconven- 
ienti plurium  valet  in  lege';  and  he  adds,  The 
law,  that  is,  the  perfection  of  reason,  cannot 
suffer  anything  that  is  inconvenient';  and 
therefore  he  says:  'Nihil  quod  est  inconven- 
iences est  licitum',  and  that  'judges  are  to 
judge  of  inconveniences  as  of  things  unlaw- 
ful.' " 

Page  77,  Section  94 :  "It  is  equally  clear  that 
the  decent  observation  of  morality  is  also  de- 
manded by  the  rights  of  individuals,  and  that 
its  open  violation  is  inconsistent  with  these 
rights.  For  such  violation  of  the  principles  of 
morality  generally  observed  by  the  community, 
would  constitute  what  is  technically  called 
nuisance  (N.  Y.  C.  C,  Section  1949,  and  au- 
thorities cited),  and  is  incomparable  with  the 
comfortable  enjoyment  of  existence  and  the 
free  exercise  of  the  faculties  in  the  pursuit  of 
happiness,  as  a  noxious  smell  or  poisonous 
exhalation." 

Note  i,  on  same  page:  "It  is  also  obvious 
that  the  right  to  the  maintenance  of  the  public 
security,  implies  the  right  to  the  preservation 
of  the  State;  and  the  latter  again  implies  the 
right  to  a  certain  extent  to  maintain  and  pre- 


166      MORAL  LAW  AND  CIVIL  LAW 

serve  the  morality  of  the  community,  for  no 
fact  is  more  certain,  historically,  than  that  the 
decay  of  morality  and  the  general  corruption 
of  society  is  incompatible  with  the  well-being, 
and  generally  with  the  permanent  existence, 
of  the  State.  This  right,  however,  so  far  as  it 
rests  upon  this  ground,  does  not  pertain  to  any 
individual  or  individuals,  but  to  the  State  only 
in  its  corporate  capacity,  and  is  therefore  to 
be  classed  with  political  rights." 

Page  309,  Section  455:  "The  assertion  of  a 
distinction  between  the  legally  and  morally 
right,  or  just,  clearly  involves  an  illegitimate 
use  of  the  terms.  For,  if  there  are  any  terms 
in  our  language  that  have  a  perfectly  definite 
signification,  they  are  the  terms  'right'  and 
'wrong/  'just'  and  'unjust' ;  and  whatever  dif- 
ficulty there  may  be  in  determining  the  na- 
ture of  moral  distinction,  it  is  at  least  certain 
that  these  terms  refer  to  one  supreme  standard 
by  which  all  acts  are  judged  to  be  right  or 
wrong,  just  or  unjust,  according  as  they  con- 
form, or  fail  to  conform,  to  it." 

Section  456:  "There  are,  indeed,  several 
standards  to  which  the  question  of  right  and 
wrong  in  particular  cases,  or  classes  of  cases, 
may  be  referred ;  but,  of  these,  one  is  supreme 
and  all  others  are  subordinate.  Thus  the  com- 
mand of  a  parent  is,  within  certain  limits,  the 
standard  of  right  for  the  child,  and,  where  the 


PARTS  OF  THE  SAME  THING        167 

parties  are  bound  by  contract,  the  will  of  the 
one  is  to  the  other,  to  the  extent  of  his  obliga- 
tion, the  standard  of  the  just  and  the  unjust." 

Note  i,  on  same  page:  "It  is  also  obvious 
that  standard  is  confessedly  subordinate,  and 
conformity  to  it  is  right  or  just  merely  because 
conformity  to  some  higher  standard  required 
it." 

Section  458:  "So,  too,  with  reference  to  a 
vast  range  of  subjects.  The  rectitude  of  ac- 
tions is  determined  by  their  conformity  to  the 
will  of  the  State  or  to  custom  or  to  utility; 
but,  when  we  assert  that  an  act  is  right  or 
wrong  from  its  conformity  or  non-conformity 
to  one  of  these  standards,  we  do  not  merely 
assert  such  conformity  or  non-conformity,  but 
also  that  the  standard  referred  to  either  con- 
forms to  a  higher  standard,  or  is  itself  the  su- 
preme standard.  Hence,  the  assertion  that 
mere  conformity  to  the  will  of  the  State  con- 
stitutes right  in  any  sense,  involves  the  asser- 
tion that  that  will  is  the  paramount  standard 
of  right  and  wrong.  In  this  matter  we  cannot 
serve  two  masters,  but  must  declare  our  alle- 
giance to  one  or  the  other.  If  the  will  of  the 
State  is,  as  Austin  asserts,  the  supreme  rule  of 
justice,  it  is  not  reasonable  to  that  will  to  as- 
sert that  anything  can  be  just  which  conflicts 
with  it,  or  unjust  which  conforms  to  it.  On 
the  other  hand,  if  it  be  assumed  that  there  is  a 


168      MORAL  LAW  AND  CIVIL  LAW 

higher  standard  than  the  will  of  the  State,  it 
is  a  direct  attack  upon  the  principle  of  morality 
to  recognize  any  species  of  right  and  wrong, 
just  and  unjust,  that  is  not  determined  so  as 
to  be  by  that  standard ;,  for  upon  this  assump- 
tion, the  term  'legally  right',  or  just,  connotes, 
as  we  have  observed,  both  legality  and  right- 
ness,  or  justness,  and  cannot  properly  be  af- 
firmed of  anything  that  lacks  either  quality. 
To  say,  therefore,  that  anything  can  be  mor- 
ally wrong  and  legally  right,  or  vice  versa, 
is  as  much  a  contradiction  in  terms  as  to  say 
that  a  crooked  line  can  be  straight  in  any 
sense,  or  an  uneven  surface  plane." 

Page  550  (3)  :  "The  notions  of  just  and  un- 
just, moral  and  immorals,  good  and  bad,  may 
all  be  resolved  into  that  of  utility  and  the 
opposite." 

Wood  in  his  work  on  "The  Law  of  Nuis- 
ances", 3rd  Ed.,  Vol.  i,  Section  23,  under  the 
heading,  "Acts  affecting  public  morals,  pub- 
lic nuisances  per  se,  when":  "There  are 
classes  or  kinds  of  business  which  are  nui- 
sances per  se,  and  the  very  fact  that  they  are 
carried  on  in  a  public  place  is  prima  facie 
sufficient  to  establish  the  offense.  But,  in 
such  cases,  if  the  respondent  questions  that 
the  use  of  his  property  in  the  manner  charged 
in  the  indictment  produces  the  effects  set 
forth  therein,  and  introduces  evidence  to  sus- 


PARTS  OF  THE  SAME  THING        169 

tain  his  position,  it  then  becomes  necessary 
to  prove  that  the  effects  are  such  as  are 
charged.  But  there  are  a  class  of  nuisances 
arising  from  the  use  of  real  property  and  from 
one's  personal  conduct  that  are  nuisances  per 
se,  irrespective  of  their  results  and  location, 
and  the  existance  of  which  only  need  to  be 
proved  in  any  locality,  whether  near  to,  or 
far  removed  from,  cities,  towns  or  human 
habitations,  to  bring  them  within  the  pur- 
view of  public  nuisances.  This  latter  class  are 
those  intangible  injuries  which  affect  the  mor- 
ality of  mankind,  and  are  in  derogation  of 
public  morals  and  public  decency" 

Same  authority  under  heading,  "Wrongs 
malum  in  se",  Section  24,  says :  "This  class 
of  nuisances  are  of  that  aggravated  class  of 
wrongs  that,  being  malum  in  se,  the  courts 
need  no  proof  of  their  bad  results  and  require 
none.  The  experience  of  all  mankind  con- 
demns any  occupation  that  tampers  with  the 
public  morals,  tends  to  idleness  and  promo- 
tion of  evil  manners;  and  anything  that  pro- 
duces that  result,  finds  no  encouragement 
from  the  law,  but  is  universally  regarded  and 
condemned  by  it  as  a  public  nuisance.  *  *  *  * 
It  cannot  be  expected  that  I  can  give  a  list  of 
every  possible  public  nuisance,  for  it  must  be 
understood  that  whether  a  particular  occupa- 
tion, act  or  thing  has  been  declared  a  nuisance 


170      MORAL  LAW  AND  CIVIL  LAW 

or  not,  is  a  matter  of  small  importance.  If  it 
comes  within  the  rules  that  have  been  estab- 
lished by  the  courts,  and  such  as  have  been 
dictated  by  the  highest  wisdom  and  sound- 
est public  policy,  and  is  productive  of  the  ill 
results  that  characterize  these  wrongs,  it  is  a 
public  nuisance  and  will  be  punished  as  such, 
although  the  offense  is  new  and  has  never  be- 
fore been  specifically  classified  as  such." 

Fonblanques's  "Equity,  p.  I :  "It  is  plain 
that  law  is  a  moral  science,  since  the  end  of  all 
law  is  justice;  and  justice,  in  all  the  most 
extensive  sense  of  the  word,  differs  little  from 
virtue  itself,  for  it  includes  within  it  the  whole 
circle  of  virtue." 


PARTS  OF  THE  SAME  THING        171 


CHAPTER    X. 
The   Superhuman  In   Law. 

IN  this  nation,  especially,  we  have  recognized 
the  rulership  and  law  of  Almighty  God 
completely  and  without  reserve.  The  first 
step  in  the  convention  called  to  draft  a  con- 
stitution for  the  United  States  government, 
George  Washington,  as  the  presiding  officer, 
opened  the  business  by  offering  a  prayer  of 
thanksgiving  to  Almighty  God  for  His  lead- 
ership, His  guidance,  the  victory  He  had 
given  the  people  of  the  nation,  and  invoked 
His  guidance,  aid  and  divine  rulership  in  the 
future.  When  called  on  to  take  the  oath  of 
office  as  the  first  President,  George  Washing- 
ton did  so,  laying  his  hand  upon  the  Bible 
and  promising  to  perform  the  duties  of  his 
office,  so  help  him  God.  Every  President  has 
taken  the  oath  in  the  same  manner,  invoking 
the  same  divine  aid,  some  of  them  kissing  the 
Book,  and  in  each  case  with  religious  service 
to  Almighty  God  as  a  part  of  the  inaugural 
ceremony.  The  first  Continental  Congress 
was  opened  with  thanksgiving  and  invocation 


172       MORAL  LAW  AND  CIVIL  LAW 

to  Almighty  God  upon  the  motion  of  Samuel 
Adams,  and  with  religious  service  of  the  most 
solemn  and  affecting  character.  Chaplains 
are  employed  by  provision  of  Congress  for 
the  army  and  navy,  to  pray  and  counsel  with 
the  sick,  and  to  teach  the  sick  and  well  doc- 
trines revealed  by  Almighty  God.  The  judges 
and  all  the  officers  of  the  Federal  Courts  take 
the  oath  of  office,  calling  upon  Almighty  God. 
The  sessions  of  Congress  are  opened  with 
prayer  to  Almighty  God.  Attorneys,  wit- 
nesses, jurors  and  in  all  cases  where  the  oath 
is  required,  is  concluded  with  an  appeal  to 
Almighty  God.  The  same  thing  is  true  as  to 
the  Governor,  sessions  of  the  Legislature,  leg- 
islators, all  officers,  and  where  an  oath  is  re- 
quired in  the  State  of  Indiana,  and  has  been 
ever  since  its  organization.  Blasphemy  against 
Almighty  God  was  a  crime  at  common  law, 
and  is  by  statute  in  Indiana.  I  do  not  claim 
that  the  Christian  religion  is  a  part  of  the  law 
of  the  land ;  yet,  as  the  conduct  and  teachings 
of  Christ  were  in  harmony  and  in  exemplifica- 
tion of  the  code  and  system  of  morality  as 
taught  by  the  revealed  will  of  God,  it  follows 
logically  and  as  amatter  of  law  that  Christian 
morality  is  the  same  as  the  revealed  morality  of 
God,  and  the  same  as  referred  to  in  the  con- 
stitution of  Indiana.  As  the  Christian  religion 
was  the  prevalent  religion  generally  recognized 


PARTS  OF  THE  SAME  THING        173 

by  the  people  of  Indiana  when  our  constitution 
was  adopted,  and  is  in  harmony  with  the  high- 
est known  system  of  morality,  it  follows  that 
the  teachings  of  the  Christian  religion  on  -this 
subject  are  entitled,  at  least,  to  greater  weight 
than  any  other  system  of  religion  and  morality, 
with  the  courts. 

I  am  not  driven  to  the  necessity  in  this  case 
of  basing  my  claim  upon  the  legal  proposition 
that  Christianity  is  a  part  of  the  law  of  the 
land,  but  I  do  assert  that  the  civilization  which 
obtains  in  the  United  States  and  in  Indiana  has 
been,  from  the  beginning  of  this  government, 
the  Christian  civilization ;  and  the  standard  of 
morality  that  has  obtained  in  these  govern- 
ments from  the  beginning,  has  ever  been,  and 
is  now,  the  Christian  standard  of  morality, 
which  is  the  same  as  the  Mosiac  and  the  Bible 
standard. 

I  call  attention  to  the  proclamation  announc- 
ing a  day  of  thanksgiving,  issued  by  President 
McKinley  in  1898,  as  follows : 

"Washington,  Oct.  28,  1898. 

"The  approaching  November  brings  to  mind 
the  custom  of  our  ancestors,  hallowed  by  time 
and  rooted  in  sacred  traditions,  of  giving 
thanks  to  Almighty  God  for  all  the  blessings 
he  has  vouchsafed  to  us  during  the  past  year, 
as  few  years  in  our  history  have  afforded  such 
cause  for  thanksgiving  as  this.  We  have  been 


174      MORAL  LAW  AND  CIVIL  LAW 

blessed  by  abundant  harvests,  our  trade  and 
commerce  have  been  wonderfully  increased, 
our  public  credit  has  been  improved  and 
strengthened,  all  sections  of  our  common  coun- 
try have  been  brought  together  and  knitted 
into  closer  bonds  of  national  purpose  and  unity. 

"The  skies  have  been  for  a  time  darkened 
by  the  cloud  of  war;  but,  as  we  were  compelled 
to  take  the  sword  in  the  cause  of  humanity, 
we  are  permitted  to  rejoice  that  the  conflict 
has  been  of  brief  duration,  and  the  losses  we 
have  had  to  mourn,  though  grievous  and  im- 
portant, have  been  so  few,  considering  the 
great  results  accomplished,  as  to  inspire  us 
with  gratitude  and  praise  to  the  Lord  of  Hosts. 
We  may  laud  and  magnify  His  holy  name  that 
the  cessation  of  hostilities  came  so  soon  as  to 
spare  both  sides  the  countless  sorrows  and 
disaster  that  attend  protracted  war. 

"I  do,  therefore,  invite  all  my  fellow-citizens, 
as  well  those  at  home,  as  those  who  may  be 
at  sea,  or  sojourning  in  foreign  lands,  to  set 
apart  and  observe  Thursday,  the  24th  day  of 
November,  as  a  day  of  National  Thanksgiving, 
to  come  together  in  their  several  places  of 
worship  for  a  service  of  praise  and  thanks  to 
Almighty  God  for  all  the  blessings  of  the  year; 
for  the  mildness  of  the  seasons  and  the  fruit- 
fulness  of  the  soil ;  for  the  continued  prosperi- 
ty of  the  people ;  for  the  devotion  and  valor  of 


PARTS  OF  THE  SAME  THING        175 

our  countrymen ;  for  the  glory  of  our  victory 
and  the  hope  of  righteous  peace;  and  to  pray 
that  the  divine  guidance  which  has  brought  us 
heretofore  to  safety  and  honor,  may  be  gra- 
ciously continued  in  the  years  to  come. 

"WILLIAM  McKINLEY, 
"President  of  the  United  States." 
At  the  beginning  of  July,  1864,  the  Union 
army  in  the  East  had  been  unsuccessful  in  a 
number  of  important  movements  and  engage- 
ments, and  the  pressing  demand  for  troops  had 
left  the  city  of  Washington  almost  without  de- 
fense, either  as  to  fortifications  or  troops.  This 
condition  had  been  discovered  by  the  Com- 
manders of  the  Confederate  forces,  and  their 
movements  made  it  clear  that  they  contem- 
plated an  attack  on  Washington  City.  Con- 
gressmen were  so  greatly  alarmed,  as  they 
might  well  have  been,  that  on  the  2nd  day  of 
July,  1864,  they  passed  a  concurrent  and  unani- 
mous resolution  requesting  President  Lincoln 
to  issue  a  proclamation,  to  designate  a  day  and 
call  on  the  people  of  the  Nation  to  assemble 
in  their  respective  places  of  divine  worship  and 
pray  for  the  protection  of  the  United  States 
Government  against  its  enemy.  Following  that 
action  of  Congress,  a  sketch  of  conditions  at 
the  time  of  that  action  and  a  few  days  immedi- 
ately thereafter,  shows  how  alarming  the  con- 
ditions were.  On  the  5th  day  of  July,  1864, 


176      MORAL  LAW  AND  CIVIL  LAW 

the  Confederate  General,  Jubal  A.  Early,  with 
probably  twenty-five  thousand  troops,  crossed 
the  Potomac  river  at  Shephardstown,  a  mile  or 
two  north  of  Harper's  Ferry,  into  Maryland, 
for  the  purpose  of  capturing  the  Nation's  Cap- 
itol. The  first  army  in  his  way  was  commanded 
by  General  Lew  Wallace  and  stationed  at  the 
Monocacy  River  near  Fredericks  City,  Mary- 
land. General  Early  gained  such  a  signal  vic- 
tory over  that  army  that  the  Union  command 
was  almost  destroyed  for  effective  service  in 
the  emergency  following  the  battle.  Flushed 
with  victory,  General  Early  pushed  his  force 
from  the  Monocacy  River  toward  Washington 
City,  about  three  days'  march  away.  Reason- 
ing from  the  actual  conditions,  it  seems  clear 
that,  if  General  Early  had  pushed  from  Mo- 
nocacy to  Washington  and  pressed  the  battle 
there  as  he  did  at  Monocacy,  he  would  have 
captured  the  city  and  the  Capitol.  However, 
hesitation,  lack  of  determination  and  evident 
lack  of  confidence  on  the  part  of  General  Early 
when  he  came  in  sight  of  Washington,  in  the 
accomplishment  of  his  final  purpose,  saved 
Washington,  rather  than  the  temporary  forti- 
fications and  the  number  of  the  military  force 
which  he  encountered.  So  intense  was  the 
gloom  hanging  over  the  city  of  Washington 
and  the  Capitol  of  the  Nation  on  account  of 
these  movements  of  the  enemy  and  the  help- 


PARTS  OF  THE  SAME  THING        177 

less  condition  of  the  city,  that,  on  the  7th  day 
of  July,  1864,  President  Lincoln  issued  the  fol- 
lowing: 

"Proclamation. 

"Whereas,  the  Senate  and  House  of  Repre- 
sentatives at  their  last  session  adopted  a  con- 
current resolution  which  was  approved  on  the 
second  day  of  July,  instant,  and  which  was  in 
the  words  following,  namely : 

"That  the  President  of  the  United  States 
be  requested  to  appoint  a  day  for  humiliation 
and  prayer  by  the  people  of  the  United  States ; 
that  he  request  his  constitutional  adviser  at 
the  head  of  the  Executive  Department  to  unite 
with  him  as  Chief  Magistrate  of  the  Nation,  at 
the  City  of  Washington,  and  the  members  of 
Congress,  and  all  magistrates,  all  civil,  military 
and  naval  officers,  all  soldiers,  sailors  and  ma- 
rines, with  all  loyal  and  law-abiding  people,  to 
convene  at  their  usual  places  of  worship  or 
wherever  they  may  be,  to  confess  and  implore 
the  compassion  and  forgiveness  of  the  Al- 
mighty, that,  if  consistent  with  His  will,  the 
existing  rebellion  may  be  speedily  suppressed, 
and  the  supremacy  of  the  constitution  and  laws 
of  the  United  States  may  be  established 
throughout  all  the  States;  to  implore  Him,  as 
the  Supreme  Ruler  of  the  world,  not  to  destroy 
us  as  a  people,  nor  suffer  us  to  be  destroyed, 


178      MORAL  LAW  AND  CIVIL  LAW 

by  the  hostility  or  connivance  of  other  nations, 
or  by  obstinate  adhesion  to  our  own  counsels 
which  may  be  in  conflict  with  His  eternal  pur- 
poses, and  to  implore  Him  to  enlighten  the 
mind  of  the  Nation  to  know  and  to  do  His  will, 
humbly  believing  that  it  is  in  accordance  with 
His  will  that  our  place  should  be  maintained 
as  a  United  People  among  the  family  of  na- 
tions; to  implore  Him  and  His  infinite  good- 
ness to  soften  the  hearts,  enlighten  the  minds 
and  quicken  the  conscience  of  those  in  rebel- 
lion, that  they  lay  down  their  arms  and  speed- 
ily return  to  their  allegiance  to  the  United 
States,  that  they  may  not  be  utterly  destroyed, 
that  the  effusion  of  blood  may  be  stayed,  and 
that  unity  and  fraternity  may  be  restored  and 
peace  established  throughout  our  borders. 

"Now,  therefore,  I,  Abraham  Lincoln,  Presi- 
dent of  the  Un;.ted  States,  cordially  concurring 
with  the  Congress  of  the  United  States  in  the 
penitential  and  pious  seniiments  expressed  in 
the  aforesaid  resolution,  and  heartily  approving 
of  the  devotional  design  and  purpose  thereof, 
do  hereby  appoint  the  first  Thursday  of  Aug- 
use  next  to  be  observed  by  the  people  of  the 
United  States  as  a  day  of  national  humiliation 
and  prayer. 

"I  do  hereby  further  invite  and  request  the 
heads  of  the  Executive  Departments  of  this 
Government,  together  with  all  legislators,  all 


PARTS  OF  THE  SAME  THING       179 

judges  and  magistrates,  and  all  civil,  military 
or  naval,  and  all  soldiers,  seamen  and  marine 
in  the  National  service,  and  all  the  other  loyal 
and  law-abiding  people  of  the  United  States, 
to  assemble  in  their  preferred  places  of  wor- 
ship on  that  day,  and  there  and  then  to  render 
to  the  Almighty  and  Merciful  Ruler  of  the  Uni- 
verse such  homage  and  such  confessions,  and 
to  offer  to  Him  such  supplications  as  the  Con- 
gress of  the  United  States  have  in  their  afore- 
said resolution  so  solemnly,  so  earnestly  and 
so  reverently  recommended. 

"In  testimony  whereof,  I  have  hereunto  set 
my  hand  and  caused  the  seal  of  the  United 
States  to  be  affixed. 

"Done  at  the  city  of  Washington  this  seventh 
day  of  July,  in  the  year  of  our  Lord  one  thous- 
and, eight  hundred  and  sixty-four,  and  of  the 
Independence  of  the  United  States  the  Eighty- 
ninth. 

(L.  S.)  "ABRAHAM  LINCOLN, 

By  the  President :  "William  H.  Seward, 

"Secretary  of  State." 

Could  there  be  any  way  of  expressing  the 
sentiment  of  the  United  States  Government,  or 
any  more  comprehensive  expression  of  the 
scope  of  the  sentiment,  than  the  foregoing  doc- 
ument? The  conditions  under  which  the  fore- 
going action  of  Congress  was  taken  and  the 
proclamation  of  the  same  was  issued,  was  such 


180       MORAL  LAW  AND  CIVIL  LAW 

as  to  justify  and  make  conclusive  the  fact  that 
said  action  of  Congress  was  earnest  and  sin- 
cere. 

What  mockery  and  sacrilege  is  all  this  on  the 
earth,  in  the  sight  of  high  heaven,  in  the  light 
of  all  our  history,  usage,  recognition,  oaths 
with  uplifted  hands,  constitutional  provisions 
and  pretended  solemnity,  if,  after  all  this,  the 
legislatures  and  courts  may  destroy  morality. 
Shall  we  shout  over  our  victories  which  we 
acknowledge  God  has  given  us,  ask  His  guid- 
ance, and  then  defy  His  laws,  and  courts  dis- 
regard them,  and  the  people  make  them  the 
subject  of  mockery?  All  the  influences  seek- 
ing to  lead  the  public  thought  in  such  a  direc- 
tion, are  the  same  that,  through  the  dark  ages 
of  paganism,  brought  disgrace  and  destruction 
to  civil  government. 

I  quote  from  the  farewell  address  of  George 
Washington  for  the  purpose  of  showing  his  un- 
derstanding of  the  meaning  and  importance  of 
morality;  and,  as  his  expression  has  been  uni- 
versally approved,  it  becomes  the  universal  un- 
derstanding and  interpretation  of  morality  as 
a  proposition  in  civil  government,  as  follows: 

"Of  all  the  dispositions  and  habits  which 
lead  to  political  prosperity,  religion  and  morali- 
ty are  indispensable  supports.  In  vain  would 
that  man  claim  the  tribute  of  patriotism  who 
should  labor  to  subvert  these  great  pillars  of 


PARTS  OF  THE  SAME  THING        181 

human  happiness,  these  firmest  props  of  the 
duties  of  men  and  citizens.  The  mere  poli- 
tician, equally  with  the  pious  man,  ought  to  re- 
spect and  cherish  them.  A  volume  could  not 
trace  all  their  connections  with  private  and 
public  felicity.  Let  it  simply  be  asked,  where 
is  the  security  for  property,  for  reputation,  for 
life,  if  the  sense  of  religious  obligation  does 
not  direct  the  oaths  which  are  the  instrument 
of  investigation  in  the  courts  of  justice?  And 
let  us  with  caution  indulge  the  supposition  that 
morality  can  be  maintained  without  religion. 
''Whatever  may  be  conceded  to  the  influence 
of  refined  education  on  minds  of  peculiar  struc- 
ture, reason  and  experience  both  forbid  us  to 
expect  that  national  morality  can  prevail  in  ex- 
clusion of  religious  belief.  It  is  substantially 
true  that  virtue  or  morality  is  a  necessary 
spring  of  popular  government.  The  rule  ex- 
tends with  more  or  less  force  to  every  species 
of  government.  Who  that  is  a  sincere  friend 
to  it  can  look  with  indifference  upon  attempts 
to  shake  the  foundation  of  the  fabric? 

Indiana  Constitution. 

The  constitution  of  Indiana  begins  by  recog- 
nizing Almighty  God  as  lawgiver  and  ruler, 
and  by  acknowledging  dependence  and  declar- 
ing loyalty  to  Him.  The  preamble  reads  as 
follows : 


182      MORAL  LAW  AND  CIVIL  LAW 

"To  the  end  that  justice  be  established,  pub- 
lic order  maintained,  and  liberty  perpetuated, 
we,  the  people  of  the  State  of  Indiana,  grateful 
to  Almighty  God  for  the  free  exercise  of  the 
right  to  choose  our  own  form  of  government, 
do  ordain  this  constitution." 

What  does  this  preamble  to  our  constitu- 
tion, the  first  declaration  of  the  convention  in 
framing  a  constitution,  mean  by  the  term  "Al- 
mighty God"  ?  It  certainly  does  not  mean  Jupi- 
ter, nor  Neptune,  nor  Gambrinus,  nor  some 
other  distinguished  person,  nor  a  great  war- 
rior, nor  a  great  patriot,  no  a  great  statesman. 

It  is  clear  that  this  declaration  recognizes 
a  divine,  super-human  Supreme  Being,  and  rec- 
ognizes His  right,  will  and  supreme  authority 
as  lawgiver  and  ruler  over  the  civil  affairs  of 
our  state. 

The  morality  as  revealed,  at  least  in  the  law 
of  Moses,  so  far  as  the  general  principles  of 
civil  government  are  concerned,  is  clearly  in- 
tended for  all  time,  and  is  the  code  of  morality 
set  out  in  the  law  as  revealed  to  Moses,  and 
is  a  fundamental  principle  now  as  it  was  then. 

This  fundamental  principle  is  back  of  the 
constitution  and,  in  fact,  governs  the  constitu- 
tion. There  are  some  things  which  the  people 
cannot  do  by  a  constitutional  enactment;  for 
instance,  they  cannot  bargain  away  the  public 
morals,  the  public  health  or  the  public  peace. 


PARTS  OF  THE  SAME  THING        183 

In  the  case  of  Stone  vs.  Mississippi,  101  U. 
S.,  814,  the  Court  said:  "No  legislature  can 
bargain  away  the  public  morals  or  the  public 
health  or  the  public  peace.  The  people  them- 
selves cannot  do  it." 

When  the  Supreme  Court  of  the  United 
States  says  that  the  Legislature  cannot  bargain 
away  these  inalienable  rights,  it  says  also  that 
the  people  themselves  cannot  do  it.  This  ex- 
pression concerning  the  people  can  have  no 
other  meaning  than  that  they  could  not  do  it 
by  a  constitutional  provision. 


PARTS  OF  THE  SAME  THING        185 


CHAPTER   XL 
A  Definite  Standard  of  Morality. 

SHELDON,  Amos,  A.  M.,  Professor  of  Juris- 
prudence in  the  University  of  London,  very 
high  authority  on  any  subject  which  he 
touches,  from  whom  I  have  hereinbefore  quot- 
ed, in  a  book  entitled  "A  Systematic  View  of 
the  Science  of  Jurisprudence",  on  page  516, 
says :  "There  exists  somewhere  a  true  and 
common  canon  or  standard  of  action,  inflexible 
in  itself,  and  yet,  withal,  admitting  of  an  easy 
adjustment  and  the  most  exquisite  modulations 
for  all  members  of  society,  which,  the  more 
habitually  each  member  adopts,  the  vaster  is 
the  expansion  of  which  his  own  nature  is  ca- 
pable, and  the  less  is  the  chance  of  the  need 
of  interruption  to  others;  and  which  the  more 
habitually  all  men  adopt,  the  more  freely  and 
harmoniously  the  general  machinery  of  social 
intercourse  works. 

"This  canon  or  standard  of  action  is  hard, 
indeed,  to  discover,  and  particular  societies 
may  spend  long  ages  in  unavailing  efforts  to 
discover.  *  *  *  *  This  canon  or  standard  of  ac- 


186      MORAL  LAW  AND  CIVIL  LAW 

tion,  including  here,  under  the  term  of  'action,' 
all  the  thoughts  and  feelings  that  give  it  life 
and  warmth,  is  absolute  morality.  It  is  the 
only  visible  image  of  the  mechanical  scaffold- 
ing of  this,  that  is  designated  by  the  phrase 
'National  law'." 

This  distinguished  author  closes  his  work  as 
follows :  "It  is  not,  then,  in  law  nor  in  govern- 
ment that  hope  must  be  placed  for  the  direct 
culture  of  a  nation's  vitality.  It  is  in  moral  and 
spiritual  efforts,  whether  expressed  in  salutary 
and  silent  influences  or  in  highly  systematized 
organizations.  *  *  *  *  In  a  word,  it  is  to  these 
direct  inspirers  of  human  virtue  and  energy 
that  law  itself  must  turn  in  order  to  find  at 
hand  a  race  of  citizens  whose  dearest  concern 
will  be  to  obey,  to  cherish  and  to  reform  it." 

Smith  on  "Rights  and  Law",  p.  44,  Section 
43 :  "Hence  it  is  that,  while  moral  philosophy 
has  furnished  a  battleground  for  conflicting 
theories  since  the  dawn  of  philosophy,  there 
has  always  been,  at  least  among  civilized  na- 
tions, a  substantial  agreement  as  to  the  prin- 
ciples of  morality.  Thus,  no  one  can  contem- 
plate the  crime  of  murder  without  disappro- 
bation ;  or,  to  refer  to  less  extreme  cases,  there 
are  none  who  will  deny  the  obligation  of  re- 
turning a  deposit  or  of  compensating  for  an 
injury  or  of  repaying  a  loan.  For  these  propo- 
sitions are  universally  admitted,  and,  indeed, 


PARTS  OF  THE  SAME  THING        187 

by  common  consent,  furnish  the  crucial  test  by 
which  all  of  the  theories  of  moral  philosophy 
are  judged,  the  partisans  of  all  striving  to  show 
that  their  respective  theories  account  for  the 
common  moral  convictions  of  mankind." 

Section  44:  "The  jurist  therefore,  is  not 
concerned  with  the  conflicting  theories  of  mor- 
al philosophy,  but  with  morality  only,  and  with 
that  only  so  far  as  it  treats  of  rights.  It  is, 
therefore,  immaterial  to  the  validity  of  our 
reasoning  what  theory  we  may  adopt  on  this 
point,  provided  we  assume  the  reality  of  moral 
distinctions  and  the  possibility  of  perceiving 
them;  the  former  of  which  is  attested  by  the 
common  consciousness,  and  the  latter  by  the 
common  experience,  of  mankind,  and  both  of 
which  are  necessarily  assumed  in  all  theories 
of  morality,  properly  so  called." 

Note  on  p.  45 :  "Moral  truths,  considered  in 
themselves,  have  no  less  certainty  than  mathe- 
matical truths.  The  idea  of  a  deposit  being 
given,  I  ask  whether  the  idea  of  faithfully  keep- 
ing it  is  not  necessarily  attached  to  it,  as  to  the 
idea  of  a  triangle  is  attached  the  idea  that  its 
three  angles  are  equal  to  two  right  angles. 
You  may  withhold  a  deposit,  but,  in  withhold- 
ing it.  do  not  believe  that  you  change  the  na- 
ture of  things,  nor  that  you  make  it  possible 
for  a  deposit  to  become  property. 

"These  two  ideas  exclude  each  other.    You 


188       MORAL  LAW  AND  CIVIL  LAW 

have  only  a  false  semblance  of  property,  and 
all  the  effects  of  passion,  all  the  sophism  of  in- 
terest, will  not  reverse  the  essential  difference. 
This  is  the  reason  why  moral  truth  is  so  trou- 
blesome ;  it  is  because,  like  all  truths,  it  is  what 
it  is,  and  does  not  bend  to  any  caprice." 

This  is  the  same  morality  referred  to  in  the 
constitution  of  Indiana,  which  is  enjoined  upon 
the  Legislature  and  civil  government ;  the  same 
which  is  referred  to  in  the  law  of  God  and  un- 
derstood by  the  common  conscience.  Morality 
is  a  sound  fundamental  principle,  safe  to  be 
followed  in  letter  and  spirit,  and  disastrous  to 
be  departed  from. 

The  Supreme  Court  of  the  United  States,  in 
the  case  of  Baltimore  &  Potomac  Railway 
Company  vs.  Fifth  Baptist  Church,  etc.,  108  U. 
S.,  317,  as  a  conclusion  reached  upon  a  some- 
what lengthy  consideration  of  the  legal  prin- 
ciples involved  in  the  case,  declared  that  "the 
great  principle  of  common  law,  is  equally  the 
teaching  of  Christian  morality." 


PARTS  OF  THE  SAME  THING        189 


CHAPTER    XII. 
The  Law  Grows. 

AS  has  been  said  before,  legal  principles  are 
fixed.  They  are  the  same  now  as  they 
were  when  Caesar  crossed  the  Rubicon. 
But  while  this  is  true,  it  often  happens  that  the 
scales  of  jutsice  are  not  held  sufficiently  steady 
to  exactly  weigh  civil  conduct  in  accordance 
therewith.  In  other  words,  it  often  happens 
that  courts  of  justice,  like  merchants,  give 
short  weight.  There  will  never  be  any  change 
in  these  principles.  Courts  make  decisions, 
afterward  modify,  criticise,  and  overrule  the 
same,  in  their  effort  to  properly  apply  legal 
principles  to  given  questions.  Legislative 
bodies  are  constantly  acting,  not  upon  new 
principles,  but  upon  the  necessity  of  applying 
old  principles  by  new  methods  to  matters  of 
emergency,  and  thereby  the  law  grows  through 
legilation.  It  grows  also  in  spite  of  legislation, 
even  to  the  extent  of  annulling  and  setting 
aside  legislative  acts.  The  law  grows  with  the 
growth  of  general  intelligence  and  public  nec- 
essity. What  was  the  law  ten  years  ago,  as 


190      MORAL  LAW  AND  CIVIL  LAW 

interpreted  by  the  courts  at  that  time,  may  not 
be  the  law  today,  though  no  legislation  has  in- 
terposed, and  no  decision  of  a  court  has  in  fact 
been  made.  It  often  becomes  apparent,  upon 
some  sudden  light  being  thrown  upon  the  mat- 
ter of  conduct  or  business  or  social  enter- 
prise, that  courts  are  constrained  to  render  de- 
cisions which  attract  wide  attention  because  of 
public  interest  in  the  questions  involved,  and 
the  new  application  of  old  legal  principles. 
This  is  the  field  where  erudition  and  judicial 
minds  exhibit  distinguished  qualities,  gain  re- 
nown, and  the  work  of  courts  is  seen  to  the 
best  advantage.  I  can  present  this  proposition 
best  by  illustration. 

A  native  was  captured  on  the  coast  of  Africa, 
and  brought  to  Virginia  and  sold  as  a  slave. 
His  name  was  James  Somerset.  Charles  Stew- 
art become  his  owner.  In  1770  Stewart  took 
his  slave  with  him  to  England  as  a  body  ser- 
vant. While  there,  the  slave  became  influenc- 
ed by  the  teaching  and  education  of  persons 
who  declared  that  a  slave  could  not  be  legally 
held  in  England.  He  refused  to  obey  his 
master  and  denied  the  relationship  of  master 
and  slave.  He  was  seized,  put  in  chains, 
placed  on  board  a  ship  to  be  sent  to  Jamaica. 
Before  the  ship  had  sailed  Thomas  Watkins, 
Elizabeth  Cady,  and  John  Marlow,  three 
Quakers,  made  an  affidavit  in  the  court  of  the 


PARTS  OF  THE  SAME  THING        191 

King's  Bench,  the  highest  court  in  England, 
that  Somerset  was  unlawfully  imprisoned. 
A  writ  of  habeas  corpus  was  issued  against  the 
ship's  captain  and  the  master,  commanding 
them  to  produce  the  body  of  the  slave  in  court. 
These  persons,  in  answer  to  the  writ,  stated 
the  facts,  as  they  claimed  them  to  be,  of  the 
relationship  of  master  and  slave  and  the  in- 
subordination. The  legal  questions  involved 
were  argued  by  very  able  counsel  on  each  side 
before  that  high  court,  and  the  case  was  held 
under  consideration  for  about  a  year  and  a  half. 
The  court  went  so  far  as  to  suggest  to  the 
master  that  it  would  be  better  that  the  case 
should  be  disposed  of  without  pressing  it  to  a 
decision,  and  even  suggested  that  it  would  be 
better  that  this  slave  should  be  released  than 
that  the  property  in  all  the  slaves  in  England 
should  be  jeopardized.  However,  the  master 
could  not  be  made  to  believe,  even  by  the  un- 
usual and  remarkably  suggestive  statement  of 
the  court,  that  it  could  be  possible  that  the  court 
could  decide  against  him  and  his  rights  to 
property  in  and  control  of  the  slave.  For  more 
than  fifty  years  slavery  had  been  sanctioned 
in  England  by  judicial  decisions  and  public  re- 
cognition. During  that  period  Lords  Har- 
wick,  Talbott,  and  York,  at  different  times, 
had  decided  that  slavery  was  a  legal  institu- 
tion. For  about  thirty  years  members  of  the 


192      MORAL  LAW  AND  CIVIL  LAW 

Quaker  society,  and  finally  the  body  of  that 
society,  had  declared  against  the  institution  of 
slavery  as  inhuman,  immoral,  ungodly,  and 
unlawful.  Other  religious  teachers  and  persons 
had  been  crying  out  against  the  institution. 
At  the  time  when  these  legal  proceedings  were 
had,  public  sentiment  against  the  institution, 
because  of  its  immorality,  had  become  aroused. 
It  was  argued  on  behalf  of  the  master  that 
the  law  upon  this  question  was  settled  by  the 
judicial  decisions  made  at  different  times  and 
of  long  standing,  and  that  public  acquiescence, 
public  necessity,  and  public  policy  demanded 
the  maintenance  of  the  institution.  The  con- 
sequences of  a  decision  against  the  master 
were  portrayed  in  the  most  alarming  expres- 
sions, and  predictions  were  made  of  the  most 
dire  consequences  to  commerce,  business,  so- 
cial, and  domestic  relations,  if  this  long-settled 
order  of  things  and  legal  status  should  be  dis- 
turbed. The  influence  of  the  wealthy,  of  roy- 
alty, great  business  enterprises,  political  and 
social  interests,  were  arrayed  with  the  master 
and  against  the  slave.  So  strong  was  the 
showing  made  in  these  regards  that  the  court 
seems  to  have  been  seriously  affected  thereby. 
Lord  Mansfield,  chief  justice  of  that  court, 
perhaps  the  most  fearless  man  who  ever  sat 
on  the  King's  Bench  in  England,  showed  hi*-. 
apprehension  when  he  contemplated  the  conse- 


PARTS  OF  THE  SAME  THING        193 

quences  of  a  decision  and,  perhaps  the  only 
time  in  all  his  history,  sought  to  avoid  render- 
ing the  judgment  of  the  court.  In  the  argu- 
ment of  the  counsel  on  behalf  of  the  slave,  one 
of  them,  speaking  of  the  growth  of  public  sen- 
timent upon  this  subject,  said,  "Upon  this  sub- 
ject the  air  of  England  has  been  clearing  since 
the  reign  of  Elizabeth." 

Every  precedent  and  decision  that  could  be 
cited  in  the  case  was  in  favor  of  the  master, 
It  was  a  fact,  entitled  to  very  great  influence 
in  the  case,  that  the  public  had  sanctioned  the 
institution  of  slavery  and  decisions  in  its  favor 
by  acquiescence  for  so  long  a  period.  In  be- 
half of  the  slave  there  was  not  a  precedent. 
In  his  interest  it  was  asked  that  the  settled 
order  of  things  for  this  long  period  should  be 
broken  up,  that  more  than  fifteen  thousand 
slaves  in  England,  those  in  Ireland,  more  than 
one  hundred  and  sixty-six  thousand  in  Jamaica, 
should  be  liberated  by  a  sudden  decision  of 
that  high  court  upon  a  legal  proposition, 
which  had  as  its  sole  foundation  the  claim  that 
the  institution  of  slavery  was  illegal,  because 
it  was  inhuman  and  immoral  in  its  very  nature 
and  results  and  could  not  be  made  lawful  by 
any  decision  of  the  courts  or  by  any  ac- 
quiescence and  sanction  of  the  public,  however 
numerous  these  decisions  and  however  long 
standing  had  been  the  public  acquiescence. 


194      MORAL  LAW  AND  CIVIL  LAW 

The  attorneys  for  that  black  man  appealed 
to  the  principles  as  presented  in  the  Scriptures, 
the  Christian  religion,  and  by  religious  teach- 
ers and  common  humanity.  There  is  no  other 
case  like  this,  ancient  or  modern,  before  a 
judicial  tribunal  in  which  what  may  be  termed 
the  "cold  law"  alone  was  clearly  and  fully  pre- 
sented on  one  side  and  only  the  hot  blood  of 
moral  principles  presented  on  the  other.  On 
behalf  of  the  master  counsel  could  read  from 
law  books,  could  appeal  to  the  teaching  of  law 
schools,  and  could  cite  the  precedent  of  his- 
tory. 

On  behalf  of  the  slave  there  was  no  voice 
from  the  law;  there  were  no  law  books.  The 
court  held  the  case  under  consideration  until 
ample  time  was  given  to  consider  it  from  a 
legal  standpoint  and  from  a  moral  standpoint. 
The  year  and  a  half  when  the  case  was  before 
the  court  was  a  period  in  which  the  great  legal 
-  rincipies  of  morality  were  at  work  in  the  gov- 
ernment. The  business,  social,  and  financial 
interests  of  the  English  government  were  ex- 
cited on  account  of  the  question  as  to  whether 
the  case  in  court  should  be  decided  for  the 
master  or  for  the  liberty  of  the  black  man. 
There,  before  that  court,  was  the  master,  sur- 
rounded by  such  a  powerful  influence  as  per- 
haps no  litigation  in  that  highest  court  had 
ever  presented.  There  was  the  black  man  with 


PARTS  OF  THE  SAME  THING       195 

his  claims,  supported  only  by  the  disinterested 
and  benevolent  zeal  of  Christian  sentiment. 
The  day  came  when  the  judges  were  on  the 
judgment  seat  and  the  master  and  the  slave 
were  brought  before  them,  and  the  judgment 
was  pronounced.  It  looks  now,  as  it  looked 
then,  a  very  unequal  and  unpromising 
struggle  on  behalf  of  the  slave.  It  has  been 
said  of  Lord  Mansfield,  who  delivered  the  de- 
cision of  the  court  in  this  case,  that  he  de- 
cided all  cases  with  a  clear  head  but  a  cold 
heart.  In  this  case,  however,  he  seemed  to 
have  maintained  his  reputation  for  a  clear  head, 
but  the  evidence  of  a  warm  heart  is  also  ap- 
parent. I  quote  this  decision  in  part,  sufficient 
to  present  in  the  most  concise  way  its  sub- 
stance :  "The  state  of  slavery  is  of  such  a  na- 
ture that  it  is  impossible  of  being  introduced 
on  any  reason,  moral  or  political.  .  .  .  The 
setting  fourteen  thousand  or  fifteen  thousand 
men  at  once  free,  loose,  by  a  solemn  opinion  is 
much  disagreeable  in  the  effects  it  threatens. 
.  .  .  .  If  the  parties  will  have  judgment, 
fiat  justitia,  ruat  caelum  (let  justice  be  done, 
whatever  may  be  the  consequence).  Fifty 
pounds  a  head  may  not  be  a  high  price;  then 
a  loss  follows  to  the  proprietors  of  above  seven 
hundred  thousand  pounds,  sterling.  How 
would  the  law  stand  with  respect  to  their  set- 
tlement— wages?  How  many  actions  for  any 


196       MORAL  LAW  AND  CIVIL  LAW 

slight  coercion  by  the  masters?  We  cannot  in 
any  of  these  points  direct  the  law.  The  law 
must  rule  us.  In  these  particulars  it  may  be 
matter  of  mighty  consideration  what  pro- 
visions are  made  or  set  by  law.  Mr.  Stuart 
may  end  the  question  by  discharging  or  giv- 
ing freedom  to  the  Negro.  I  did  think  at  first 
to  put  the  matter  to  a  more  solemn  way  of  ar- 
gument. But  if  my  brothers  agree  there  seems 
no  occasion.  I  do  not  imagine,  after  the  point 
has  been  discussed  on  both  sides  so  extremely 
well,  any  new  light  could  be  thrown  upon  the 
subject.  If  the  parties  choose  to  refer  it  to 
the  Common  Pleas  they  can  give  them  that 
satisfaction  whenever  they  think  of  it.  An 
application  to  Parliament,  if  the  merchants 
think  the  question  of  great  commercial  con- 
cern, is  the  best  and  perhaps  the  only  method 
of  settling  the  point  for  the  future.  .  .  . 
Whatever  inconveniences  therefore  may  follow 
from  a  decision,  I  cannot  say  this  case  is  al- 
lowed or  approved  by  the  law  of  England ;  and 
therefore  the  black  man  must  be  discharged." 
(Lofft's  Report.  Second  Case).  This  decision 
was  rendered  in  1772,  ai:  '  settled  the  law  upon 
that  subject.  The  substance  and  effect  of  that 
decision  was  that  there  was  no  legal  right  of 
ownership,  or  to  hold,  or  to  control  a  human 
being  as  property  anywhere  within  the  juris- 
diction of  that  Court.  The  jurisdiction  of  that 


PARTS  OF  THE  SAME  THING        197 

Court  was  broad  as  the  dominion  of  the  En- 
glish government. 

The  same  Court  afterwards  declared  that,  if 
an  Act  of  Parliament  were  to  endorse  the  in- 
stitution of  slavery,  the  Court  would  be  bound 
to  disregard  it. 

The  combined  influence  of  the  aristocracy, 
greed,  wealth  and  depravity  was  powerful 
enough  to  suppress  the  law  as  declared  by  the 
Court,  but  could  not  suppress  agitation  upon 
the  subject.  On  account  of  the  growing  agita- 
tion and  public  sentiment,  an  Act  of  Parliament 
was  passed  in  1833,  abolishing  the  African 
slave  trade  and  putting  an  end  to  the  condition 
of  slavery  within  the  boundaries  of  the  En- 
glish government  as  a  matter  of  statute. 

Believers  in  the  Scriptures  accept  the  ac- 
count of  divine  deliverance  of  Joseph  from 
slavery  and  prison  and  his  promotion  and  rul- 
ership  in  Egypt,  and  the  deliverance  of  the 
three  Hebrews  from  the  burning  fire,  and 
Daniel  from  the  lions'  den.  In  each  of  these 
cases  special  divine  interposition  is  claimed. 

In  the  case  of  Charles  Somerset,  the  slave, 
the  decision  was  not  in  accordance  with  the 
letter  or  spirit  of  the  schools  of  law,  law  books, 
decided  cases,  or  intellectual  process  of  that 
day.  A  remarkable  overpowering  influence 
from  some  source  came  upon  the  mind  of  the 
court — a  court  never  surpassed  in  the  world's 


198       MORAL  LAW  AND  CIVIL  LAW 

history  for  intelligence.  Advancing  civiliza- 
tion threw  a  greater  light  upon  that  question, 
and  thereby  revealed  what  courts  had  never 
been  able  to  see  before. 

We  are  not  driven  to  the  necessity  of  claim- 
ing special  divine  interposition  in  behalf  of 
the  slave  in  this  case.  The  great  principle  of 
public  morality  is  strong  enough,  has  in  it 
such  overpowering  influence  as  that  it  is  suf- 
ficient for  any  great  emergency  like  this,  when 
it  has  due  course.  Doctrines  recognized  and 
declared  to  be  the  law  in  that  case  are  identical 
with  the  doctrine  taught  by  Christian  teachers, 
by  the  Quaker  Church,  George  Whitfield,  Wil- 
liam Wilberforce,  John  Wesley,  and  many 
other  great  leaders,  and  were  in  accordance 
with  the  prayers  and  urgency  of  devout  people, 
though  they  stood  in  conflict  with  what  were 
recognized  as  legal  precedents.  Where  did 
these  people  get  these  doctrines  which  they 
had  succeeded  in  enforcing  in  such  a  wonder- 
ful degree  and  with  such  amazing  success? 
I  need  go  no  further  in  my  claim  in  this  case 
than  that  the  secret  of  this  most  renowned  de- 
cision, the  consequence  of  which  will  never 
end,  was  simply  the  application  of  the  princi- 
ples of  sound  morality  to  a  question  in  civil 
courts.  The  court,  in  this  decision,  made  the 
doctrines  as  taught  by  these  religious  teachers 
the  law  of  the  land,  as  against  the  doctrines 


PARTS  OF  THE  SAME  THING        199 

a£  taught  by  the  schools  of  law,  the  law  books, 
precedents,  and  decisions.  That  decision  set 
free  all  the  slaves  within  the  jurisdiction  of 
that  court,  and  a  Christian  civilization  so  ad- 
justed all  the  affairs,  public  and  private,  that 
the  consequences  never  made  a  jar.  More 
than  a  century  has  gone  by  since  that  decision 
was  rendered.  The  consequences  have  fallen 
like  benedictions  in  the  pathways  of  mankind 
during  all  this  period.  That  decision,  as  a 
precedent,  has  gone  like  a  divine  influence 
into  the  affairs  of  men.  The  judges  who  ren- 
dered it  have  gone  to  their  reward,  and  in  the 
great  day  of  final  judgment  need  not  fear 
condemnation  for  that  act. 

In  1807  the  Indiana  Territorial  Legislature 
chartered  the  Vincennes  University,  at  Vin- 
cennes,  Indiana.  In  that  charter  there  was  a 
section  as  follows :  "And  be  it  further  en- 
acted, That  for  the  support  of  the  aforesaid 
institution,  and  for  the  purpose  of  procuring 
a  library  and  the  necessary  philosophical  and 
experimental  apparatus,  agreeably  to  the 
eighth  section  of  this  law,  there  shall  be  rais- 
ed a  sum  not  exceeding  twenty  thousand  dol- 
lars, by  a  lottery,  to  be  carried  into  operation 
as  speedily  as  may  be  after  the  passage  of  this 
act,  and  that  the  trustees  of  the  said  university 
shall  appoint  five  discreet  persons,  either  of 
their  body  or  other  persons,  to  be  managers 


200      MORAL  LAW  AND  CIVIL  LAW 

of  the  said  lottery,  each  of  whom  shall  give 
security,  to  be  approved  of  by  said  trustees, 
in  such  sum  as  they  shall  direct,  conditioned 
for  the  faithful  discharge  of  the  duty  required 
of  said  managers,  and  the  said  managers  shall 
have  power  to  adopt  such  schemes  as  they  may 
deem  proper  to  sell  the  said  tickets  and  to 
superintend  the  drawing  of  the  same  and  the 
payment  of  the  prizes,"  etc.  The  present 
Constitution  of  Indiana,  adopted  in  1851,  pro- 
hibits lotteries.  The  Supreme  Court  of  Indi- 
ana, in  1879,  in  the  case  of  Kellum  vs.  The 
State,  66  Indiana,  588,  held  that  under  the 
charter  to  the  Vincennes  University  the  lot- 
tery provision  had  become  a  vested  right  and 
could  not  be  disturbed  even  by  a  constitutional 
provision.  This  decision  attracted  wide  at- 
tention in  Indiana,  and  was  the  cause  of  much 
public  discussion.  The  people  of  Indiana  had 
become  much  aroused  upon  the  question  of 
the  morality  of  the  lottery  business.  Churches 
were  declaring  in  the  form  of  resolutions  and 
other  action  against  the  business.  The  better 
class  of  people  were  antagonizing  it.  There 
was  a  great  and  rapid  growth  of  public  senti- 
ment upon  this  question.  In  1883,  in  the  case 
of  the  State  vs  Woodard,  89  Indiana  Reports, 
no,  the  question  of  the  legality  of  the  lottery 
provisions  in  the  Vincennes  charter,  the  iden- 
tical question  that  had  been  before  the  court  in 


PARTS  OF  THE  SAME  THING        201 

1879  was  again  presented,  and  the  court  was 
again  called  upon  to  consider  the  question. 
No  act  of  the  Legislature  had  intervened  since 
the  former  decision.  In  the  interval  between 
the  former  decision  and  the  presentation  of 
the  question  again  the  decision  of  the  Su- 
preme Court  of  the  United  States,  in  the  case 
of  Stone  vs.  Mississippi,  101  U.  S.  Reports, 
814,  had  been  rendered,  in  which  the  court 
held  that  the  lottery  business  was  an  immoral 
business  and  could  have  no  vested  rights. 
When  the  Supreme  Court  of  Indiana  looked 
the  second  time  at  the  question  they  saw  in  it 
the  principle  involved,  what  the  court  did  not 
see  in  the  former  decision,  not  because  there 
was  any  new  principle  involved,  but  because 
by  the  reason  of  the  growth  of  public  senti- 
ment and  legal  knowledge  the  court  was  en- 
abled to  see  what  it  was  unable  to  see  before 
in  the  same  question.  In  the  latter  decision 
the  court  disregarded  all  the  precedents  which 
it  had  cited,  all  the  argument  which  it  had 
made,  all  its  own  reasoning  in  the  former  case, 
overruled  its  former  decision,  and  decided  that 
the  lottery  provision  in  the  Vincennes  Uni- 
versity was  void,  and  that  the  lottery  business 
could  not  be  conducted  by  the  trustees  or  any- 
one else  for  that  institution,  because  of  the 
immorality  of  the  business  itself. 

At  the  close  of  the  opinion  of  the  court  in 


202      MORAL  LAW  AND  CIVIL  LAW 

this  last  case  in  Indiana,  which  was  written  by 
Judge  Wordon,  the  reporter  adds  the  follow- 
ing note :  "This  was  the  last  opinion  written 
by  Hon.  James  B.  Wordon."  Judge  Wordon 
was  one  of  the  judges  who  had  concurred  in 
the  opinion  of  that  court  four  years  before  ex- 
pressing exactly  the  contrary  opinion. 

Slavery  had  existed  in  the  United  States, 
had  been  recognized  by  the  courts,  including 
the  Supreme  Court  of  the  United  States,  as 
a  lawful  institution  for  more  than  two  hun- 
dred and  fifty  years.  It  was  so  firmly  estab- 
lished and  so  influential  that  men  in  public 
positions  hazarded  their  personal  safety  by 
even  suggesting  that  it  ought  to  be  legally  in 
terferred  with.  There  was  no  prospect  in  the 
least  of  taking  any  step  whatever  to  disturb 
it  as  an  institution.  The  Supreme  Court  of 
the  United  States  even  had  become  so  domi- 
nated and  subjugated  by  the  influences  of  that 
institution  that  for  some  time  it  disregarded 
every  settled  and  fixed  fundamental  principle 
of  law  and  morality,  and  in  the  face  of  the 
great  precedent  in  the  case  of  Somerset  vs. 
Stewart,  to  which  I  have  referred,  decided  by 
the  King's  Bench  in  England,  by  which  slav- 
ery had  been  abolished,  and  decided  that  the 
black  man  had  no  rights  that  the  white  man 
was  bound  to  respect.  The  decision  in  the 
English  case  fell  like  a  benediction,  and  has 


PARTS  OF  THE  SAME  THING        203 

gone  into  every  civilized  government  with  its 
great  influence,  and  shall  shine  brighter  and 
brighter  forever. 

The  case  of  Dred  Scott  vs.  John  F.  A.  Stan- 
ford, decided  in  1857,  more  than  eighty  years 
after  the  English  case,  by  the  Supreme  Court 
of  the  United  States,  going  to  the  extreme 
against  the  rights  of  the  colored  man  and  in 
favor  of  the  inhuman  and  immoral  institution 
of  slavery,  aroused  the  antagonism  and  war- 
like spirit  of  a  large  class  of  people,  and  was 
one  of  the  greatest  factors  in  producing  civil 
war  in  the  United  States. 

Notwithstanding  this  decision  of  our  high- 
est court,  notwithstanding  the  fact  that  no 
legislation  interfering  with  the  existence  of 
slavery  was  possible  in  the  United  States, 
notwithstanding  the  claim,  and  general  ac- 
quiescence therein,  that  the  government  of  the 
United  States  could  not  interfere  with  the  in- 
stitution of  slavery  in  the  States  where  it  ex- 
isted by  legislation  or  otherwise,  yet  there 
came  a  day  when  the  education  of  the  people 
of  the  nation,  under  the  excitement  of  those 
stirring  days,  had  so  rapidly  advanced  that 
under  the  law  of  public  necessity  Abraham 
Lincoln,  by  one  stroke,  as  chief  executive  of 
the  nation,  could  and  did  destroy  that  insti- 
tution, as  a  war  necessity,  for  the  preserva- 
tion of  the  government.  The  growth  in  the 


204       MORAL  LAW  AND  CIVIL  LAW 

comprehension  of  the  law  concerning  that  in- 
stitution from  1861  to  1863  was  greater  than 
the  growth  of  education  upon  that  subject 
for  the  two  hundred  and  fifty  years  previous. 

Ten  years  after  the  close  of  the  civil  war 
one  of  the  most  distinguished  writers  and 
statesmen  in  the  nation  prepared  and  caused 
to  be  published  any  article,  in  which  he  as- 
serted that  slavery,  in  fact,  had  never  been 
abolished  in  the  United  States,  because  Abra- 
ham Lincoln,  as  president,  had  no  authority 
for  issuing  the  Emancipation  Proclamation, 
and  that  the  proclamation  was  void.  The  arti- 
cle, however,  only  served  to  remind  the  peo- 
ple of  what  had  once  been  the  public  impres- 
sion, and  how  great  had  been  the  growth  of 
education  upon  that  subject,  and  caused  a 
smile  at  the  temerity  of  the  writer. 

A  case  was  recently  presented  to  the  Su- 
preme Court  of  Indiana  in  which  a  widow  had 
brought  suit  against  a  saloon  keeper  and  his 
landlord  for  damages  done  to  the  widow's 
property,  and  the  enjoyment  of  her  home,  by 
the  establishment  and  maintenance  of  a  sa- 
loon adjoining  her  residence.  The  defendants 
pleaded  a  license  under  the  law  of  the  State 
authorizing  the  saloon  business.  The  license 
law  of  the  State  of  Indiana  made  no  exception 
as  to  locality,  and  the  saloonkeeper  flaunted 
his  license  in  the  face  of  the  widow  with  the 


PARTS  OF  THE  SAME  THING       205 

utmost  confidence  that  she  was  ;  werless  and 
without  relief  under  the  law.  This  particular 
question  had  never  before  been  presented  to 
any  court.  Our  Supreme  Court,  in  its  first 
decision  upon  that  question,  held  that  the 
widow  was  not  entitled  to  any  relief.  A  pe- 
tition for  rehearing  was  presented,  considered, 
and  sustained.  The  court  having  thus  opened 
the  case  for  reconsideration  gave  to  the  ques- 
tion presented  remarkable  and  very  unusual 
attention,  and  finally  decided;  first,  that  the 
widow  had  a  right  of  action;  second,  that  the 
saloon  keeper  and  also  his  landlord,  who  had 
leased  the  property  for  saloon  purposes,  were 
each  liable  for  damages ;  third,  that  the  license 
was  no  protection  to  the  business  in  that  lo- 
cality; fourth,  that  an  orderly  saloon  in  an 
orderly  residence  neighborhood  is,  per  se,  a 
nuisance.  In  reaching  these  conclusions  the 
court  was  compelled  to  disregard  and  annul 
largely  the  letter  of  the  license  law;  to  de- 
clare that  no  statute  could  authorize  by  its 
provisions  or  give  its  protection  to  any  act 
or  business  such  as  the  business  in  the  case 
presented;  that  the  saloon  business  is  of- 
fensive to  good  morals  and  sound  sentiment. 
This  decision  is  without  precedent  upon  the 
issue  presented.  The  decision  is  a  departure 
from  the  view  of  the  law  and  of  that  business 
as  heretofore  taken.  This  decision  most  forci- 


206      MORAL  LAW  AND  CIVIL  LAW 

bly  illustrates  the  growth  in  the  view  of  the 
law  upon  this  subject.  The  legislature  of  In- 
diana can  grant  no  relief  from  the  effect  and 
consequences  of  this  decision,  for  the  reason 
that  rights  of  property  and  enjoyment  of  the 
same  as  recognized  in  the  decision  cannot  be 
interfered  with  without  compensation.  See 
Haggart  et  al  vs.  Stehlin  et  al,  137  Ind.,  43. 

We  have  had  illustration  of  the  growth  of 
the  law  exhibited  in  regard  to  prize  fighting. 

In  January,  1894,  a  prize  fight  between 
James  J.  Corbett  and  Charles  Mitchell  was 
duly  advertised  to  be  given  in  the  State  of 
Florida.  The  governor  called  out  the  militia 
to  prevent  the  immoral  and  demoralizing  ex- 
hibition. A  court  of  justice,  upon  application, 
issued  an  injunction  against  the  use  of  the 
militia  for  the  purpose  for  which  it  had  been 
called,  declaring  that  there  was  no  law  in 
Florida  against  prize  fighting,  and  thereby 
prevented  all  interference  on  the  part  of  the 
State  troops  and  the  police  auhorities.  The 
Governor  of  Texas,  on  being  informed  by  his 
attorney  general  in  the  month  of  October, 
1895,  that  there  was  no  law  in  Texas  to  pre- 
vent prize  fighting,  assembled  the  Legislature 
of  the  State  to  meet  the  emergency,  and  with- 
in three  hours  after  that  body  was  organized 
a  law  had  been  passed  and  signed  by  the  gov- 
ernor forbidding  such  brutal  exhibitions. 


PARTS  OF  THE  SAME  THING       207 

Within  less  than  one  month  after  this  enact- 
ment in  Texas,  in  response  to  the  public  de- 
mand of  advanced  civilization,  when  the  same 
exhibition  was  undertaken  to  be  given  in  the 
State  of  Arkansas,  the  chief  executive,  his  at- 
torney general,  and  the  court  decided  upon, 
and  put  in  execution,  judicial  process,  and  pre- 
vented the  same,  not  upon  an  act  of  the  Leg- 
islature, but  upon  a  construction  of  the  law  as 
it  had  existed  ever  since  the  organization  of 
the  State,  and  provisions  almost  identical  with 
those  that  had  long  existed  in  the  States  of 
Florida  and  Texas,  the  provisions  of  which 
were  ample  to  have  met  the  emergency  in 
either  of  these  States,  if  properly  construed, 
to  prevent  a  prize  fight. 

The  force  of  public  opposition  has  thrown 
such  a  light  upon  the  real  character  and  de- 
moralizing influences  of  prize  fighting  that  the 
law,  as  it  is,  has  grown  to  meet  the  emergency, 
until  prize  fighting  is  clearly  unlawful  in  every 
State  in  the  Union.  National  and  State  Con- 
stitutions grow  with  the  experience  and  en- 
lightenment of  men.  The  word  "morality" 
itself  is  a  thing  of  growth.  This  word  means 
much  more  than  it  once  did,  and  some  day 
will  mean  a  vast  deal  more  to  us  than  it  does 
now.  Growth  in  the  comprehension  of  no 
word,  perhaps,  has  broadened  more  in  recent 
years  than  the  word  "cruelty."  Its  scope  now 


208      MORAL  LAW  AND  CIVIL  LAW 

covers  many  subjects  and  a  wide  field.  There 
was  a  time  when  a  man  could  lawfully  whip 
his  wife  in  moderation,  beat  his  children  to  the 
limits  of  brutality,  and  kill  his  slave  or  animals 
with  impunity,  without  being  charged  with 
cruelty.  We  have  now  reached  the  point  in 
our  comprehension  of  this  word  where  it  is 
dangerous  for  a  man  to  kick  his  own  dog,  fail 
to  feed  his  own  horse,  or  even  threaten  to 
strike  his  own  wife.  There  was  a  time  when 
the  word  "cruelty"  had  its  own  particular  and 
narrow  meaning.  Now  it  is  merely  one  of  the 
branches  of  immorality.  A  cruel  man  is  a  bad 
man,  and  a  bad  man  cannot  be  a  moral  man. 
I  have  said  the  law  grows.  I  have  made  this 
declaration  in  this  form  for  convenience  and 
for  the  purpose  of  making  myself  more  easily 
understood.  Strictly  speaking,  the  law  does 
not  grow,  but  the  comprehension  of  legal 
principles  does  grow.  Principles  as  set  forth 
in  the  Ten  Commandments  will  be  no  greater 
in  the  day  of  final  judgment  than  when  they 
were  written  down  in  the  presence  of  Moses 
on  tables  of  stone,  but  every  generation  will 
learn  something  new  concerning  these  princi- 
ples and  will  see  in  them  what  has  not  been 
seen  before.  The  history  and  growth  in  the 
comprehension  and  meaning  of  the  word  "mo- 
rality" is  a  most  fascinating  study.  Nothing 
short  of  the  historic  evolution  of  morality  for 


PARTS  OF  THE  SAME  THING        209 

two  thousand  years  can  furnish  full  compre- 
hension of  its  meaning.  The  volumes  that 
have  been  written  upon  this  subject  would 
make  such  a  weight  as  few  men  could  carry  at 
one  time.  The  word  "morality/*  as  used  in 
the  Constitution  of  Indiana  and  the  Constitu- 
tions of  other  States  and  in  the  judicial  de- 
cisions of  other  States,  must  be  held  by  faith- 
ful judges  to  contemplate  all  that  ever  can  be 
found  at  any  time  by  the  most  profound  re- 
search under  the  most  brilliant  light  within  its 
boundaries.  Civil  law  is  not  founded  upon  any 
military,  martial,  business,  or  social  ideas. 
The  abiding  and  fundamental  principle  in  civil 
law  is  morality,  with  its  honesty,  fair  dealing, 
and  justice  to  all  men.  The  historic  method  of 
explanation  of  legal  principles  which  is  the 
method  accepted  by  courts  that  are  well  in- 
formed on  legal  principles  has  narrowed  and 
changed  the  meaning  of  many  words,  and  even 
dropped  some  words  and  whole  expressions 
out  of  definitions,  but  this  method  has,  for 
three  thousand  years,  steadily,  but  never  as 
rapidly  as  within  recent  years,  developed,  en- 
larged, and  strengthened  the  word  "morality." 
I  venture  to  prophesy  for  the  future  that  the 
word  "morality"  will  respond  to  the  inquiries 
of  faithful  courts  by  the  revelation  of  many 
beautiful  and  most  important  ideas  heretofore 
and  now  unseen.  Writers  on  all  branches  of 


210      MORAL  LAW  AND  CIVIL  LAW 

law  well  know  that  the  individual  state- 
ments of  legal  propositions  have  little  weight. 
Therefore  it  is  not  only  the  most  common  cus- 
tom, but  an  absolute  necessity,  that  any 
writer  should  fortify  his  statements  by  quota- 
tions from  good  authority.  I  have  heretofore 
quoted  from  Austin's  works  on  jurisprudence, 
because  he  is  perhaps  the  best  authority  on 
historic  development  of  legal  principles,  and 
his  high  authority  is  universally  recognized  by 
the  legal  profession. 

I  feel  that  I  can  do  no  better  in  closing  this 
chapter  than  to  quote  at  some  length  from  this 
high  authority.  In  doing  so  let  me  call  special 
attention  to  the  fact  that  the  author,  in  what  I 
shall  quote,  is  not  merely  lecturing  upon  the 
subject,  but  is  considering,  from  a  legal  stand- 
point, the  subject  of  "morality."  He  uses  the 
word  "ethics"  and  "ethical,"  meaning  by  these 
words  exactly  what  was  then  and  is  now  meant 
by  the  word  "morality."  This  is  shown  in  his 
work,  and  also  in  quotations  made  from  him  in 
another  chapter  of  this  work. 

In  Vol.  I,  pp.  137-138,  this  author  says : 

"If  the  elements  of  ethical  science  were 
widely  diffused,  the  science  would  advance 
with  proportionate  rapidity. 

"If  the  minds  of  the  many  were  informed 
and  invigorated,  their  coarse  and  sordid 
pleasures  and  their  stupid  indifference  about 


PARTS  OF  THE  SAME  THING       211 

knowledge  would  be  supplanted  by  refined 
amusements  and  by  liberal  curiosity ;  a  numer- 
ous body  of  recruits  from  the  lower  of  the 
middle  classes,  and  even  from  the  higher 
classes  of  the  working  people,  would  thicken 
the  slender  ranks  of  the  reading  and  reflecting 
public,  the  public  which  occupies  its  leisure 
with  letters,  science,  and  philosophy;  whose 
opinion  determines  the  success  or  failure  of 
books,  and  whose  notice  and  favor  are  natural- 
ly courted  by  the  writers. 

"And  until  that  public  shall  be  much  ex- 
tended, shall  embrace  a  considerable  portion 
of  the  middle  and  working  people,  the  science 
or  ethics,  with  all  the  various  sciences  which 
are  nearly  related  to  ethics,  will  advance 
slowly. 

"It  was  the  opinion  of  Mr.  Locke,  and  I  fully 
concur  in  the  opinion,  that  there  is  no  peculiar 
uncertainty  in  the  subject  or  matter  of  these 
sciences ;  that  the  great  and  extraordinary  dif- 
ficulties by  which  their  advancement  is  im- 
peded are  intrinsic,  are  opposed  by  sinister  in- 
terests or  by  prejudices  which  are  the  offspring 
of  such  interests;  that  if  they  who  seek  or 
affect  to  seek  the  truth  would  pursue  it  with 
obstinate  application  and  with  due  'indiffer- 
ency*  they  might  frequently  hit  upon  the  ob- 
ject which  they  profess  to  look  for.  Now,  few 
of  them  will  pursue  it  with  this  requisite  "in- 


212       MORAL  LAW  AND  CIVIL  LAW 

differacy'  or  impartiality  so  long  as  the  bulk 
of  the  public  which  determines  the  fate  of  their 
labors  shall  continue  to  be  formed  from  the 
classes  which  are  elevated  by  rank  or  opulence, 
and  from  the  peculiar  professions  or  callings 
which  are  distinguished  by*the  name  of  'lib- 
eral.' In  the  science  of  ethics,  and  in  all  the 
various  sciences  which  are  nearly  related  to 
ethics,  your  only  sure  guide  is  general  utility. 
If  thinkers  and  writers  would  stick  to  it  hon- 
estly and  closely  they  would  frequently  en- 
rich these  sciences  with  additional  truths  or 
would  do  them  good  service  by  weeding  them 
of  nonsense  and  error.  But  since  the  peculiar 
interests  of  particular  and  narrow  classes  are 
always  somewhat  adverse  to  the  interests  of 
the  great  majority,  it  is  hardly  expected  of 
writers  whose  reputation  depends  upon  such 
classes  that  they  should  fearlessly  tread  the 
path  which  is  indicated  by  the  general  well- 
being." 

"The  indefferency  in  the  pursuit  of  truth 
which  is  so  earnestly  inculcated  by  Mr.  Locke 
is  hardly  to  be  expected  of  writers  who  occupy 
so  base  a  position;  knowing  that  a  fraction  of 
the  community  can  make  or  mar  their  reputa- 
tion, they  unconsciously  or  purposely  accom- 
modate their  conclusions  to  the  prejudices  of 
that  narrower  public,  or,  to  borrow  the  ex- 
pressive language  of  the  greatest  and  best  of 


PARTS  OF  THE  SAME  THING        213 

philosophers,  they  begin  with  espousing  the 
will-endowed  opinions  in  fashion,  and  then 
seek  arguments  to  show  their  beauty  or  to 
varnish  or  disguise  their  deformity." 

Also  in  the  same  volume,  at  pages  141  to 

143- 

"This  patience  in  investigation,  this  dis- 
tinctness and  accuracy  of  method,  this  free- 
dom and  'indefferency*  in  the  pursuit  of  the 
useful  and  the  true,  would  thoroughly  dispel 
the  obscurity  by  which  the  science  is  clouded, 
and  would  clear  it  of  most  of  its  uncertainties. 
The  wish,  the  hope,  the  prediction  of  Mr. 
Locke  would  in  time  be  accomplished,  and 
'ethics*  would  rank  with  the  sciences  which 
are  capable  of  demonstration..  The  adepts  in 
ethical  as  well  as  in  mathematical  science 
would  certainly  agree  in  their  results,  and  as 
the  jar  of  their  conclusions  gradually  subsided 
a  body  of  doctrine  and  authority  to  which  the 
multitude  might  trust  would  emerge  from  the 
existing  chaos.  The  direct  examination  of  the 
multitude  would  only  extend  to  the  elements 
and  to  the  easier  though  more  momentous  of 
the  derivative  practical  truths.  But  none  of 
their  opinions  would  be  adopted  blindly,  nor 
would  any  of  their  opinions  be  obnoxious  to 
groundless  and  capricious  change.  Though 
most  or  many  of  their  opinions  would  still  be 
taken  from  authority,  the  authority  to  which 


214      MORAL  LAW  AND  CIVIL  LAW 

they  would  trust  might  satisfy  the  most  scru 
pulous  reason.  In  the  unanimous  or  general 
consent  of  numerous  and  impartial  inquirers 
they  would  find  that  mark  of  trustworthiness 
which  justifies  reliance  on  authority  wherever 
we  are  debarred  from  the  opportunity  of  ex- 
amining the  evidence  for  ourselves. 

With  regard,  then,  to  the  perplexing  diffi- 
culty which  I  am  trying  to  solve  or  extenuate 
the  case  stands  thus: 

"If  utility  be  the  proximate  test  of  positive 
law  and  morality,  it  is  simply  impossible  that 
positive  law  and  morality  should  be  free  from 
defects  and  errors.  Or  (adopting  a  different 
though  exactly  equivalent  expression),  if  the 
principle  of  general  utility  be  our  guide  to  the 
divine  commands,  it  is  impossible  that  the 
rules  of  conduct  actually  obtaining  among 
mankind  should  accord  completely  and  cor- 
rectly with  the  laws  established  by  the  Deity. 
The  index  to  His  will  is  imperfect  and  uncer- 
tain. His  laws  are  signified  obscurely  to  those 
upon  whom  they  are  binding,  and  are  subject 
to  inevitable  and  involuntary  misconstruction. 

"For,  first,  positive  law  and  morality,  fash- 
ioned on  the  principle  of  utility,  are  gotten  by 
observation  and  induction  from  the  tenden- 
cies of  human  actions;  from  what  can  be 
known  or  conjectured,  by  means  of  observa- 
tion and  induction,  of  their  uniform  or  custo- 


PARTS  OF  THE  SAME  THING        215 

mary  effects  on  the  general  happiness  or  good. 
Consequently  till  these  actions  shall 
be  marked  and  classed  with  perfect 
completeness,  and  their  efforts  observed 
and  ascertained  with  similar  com- 
pleteness, positive  law  and  morality,  fashion- 
ed on  the  principle  of  utility,  must  be  more  or 
less  defective  and  more  or  less  erroneous. 
And  these  actions  being  infinitely  various  and 
their  effect  being  infinitely  diversified,  the 
work  of  classing  them  completely  and  of  col- 
lecting their  effects  completely  transcends  the 
limited  faculties  of  created  and  finite  beings. 
As  the  experience  of  mankind  enlarges,  as  they 
observe  more  extensively  and  accurately  and 
reason  more  clearly  and  precisely,  they  may 
gradually  mend  the  defects  of  their  legal  and 
moral  rules,  and  may  gradually  clear  their 
rules  from  the  errors  and  nonsense  of  their 
predecessors.  But  though  they  may  constant- 
ly approach,  they  certainly  will  never  attain  a 
faultless  system  of  ethics,  to  a  system  perfect- 
ly in  unison  with  the  dictates  of  general  util- 
ity, and  therefore  perfectly  in  unison  with  the 
benevolent  wishes  of  the  Deity. 

"And,  secondly,  if  utility  be  the  proximate 
test  of  positive  law  and  morality,  the  defects 
and  errors  of  popular  or  vulgar  ethics  will 
scarcely  admit  of  a  remedy.  For  if  ethical 
truth  be  a  matter  of  science,  and  not  of  im- 


216      MORAL  LAW  AND  CIVIL  LAW 

mediate  consciousness,  most  of  the  ethical 
maxims  which  govern  the  sentiments  of  the 
multitude  must  be  taken  without  examination 
from  human  authority.  And  where  is  the 
human  authority  upon  which  they  can  safely 
rely?  Where  is  the  human  authority  bearing 
such  marks  of  trustworthiness  that  the  ig- 
norant may  hang  their  faith  upon  it  with  reas- 
onable assurance?  Reviewing  the  various 
ages  and  the  various  nations  of  the  world,  re- 
viewing the  various  sects  which  have  divided 
the  opinions  of  mankind,  we  find  conflicting 
maxims  taught  with  equal  confidence  and  re- 
ceived with  equal  docility.  We  find  the  guides 
of  the  multitude  moved  by  sinister  interests 
or  by  prejudices  which  are  the  offsprings  of 
such  interests.  We  find  them  stifling  inquiry, 
according  to  the  measure  of  their  means ;  up- 
holding with  fire  and  sword  or  with  sophistry, 
declamation,  and  calumny  the  theological  and 
ethical  dogmas  which  they  impose  upon  their 
prostrate  disciples.  Such  is  the  difficulty.  The 
only  solution  of  which  this  difficult  seems  to 
admit  is  suggested  by  the  remarks  which  I 
have  already  submitted  to  your  attention,  and 
which  I  will  not  repeat  in  an  inverted  and 
compendious  form. 

"In  the  first  place,  the  diffusion  of  ethical 
science  among  the  great  bulk  of  mankind  will 
gradually  remove  the  obstacles  which  prevent 


PARTS  OF  THE  SAME  THING        217 

or  retard  its  advancement.  The  field  of  hu- 
man conduct  being  infinite  or  immense,  it  is 
impossible  that  human  understanding  should 
embrace  and  explore  it  completely.  But  by 
the  general  diffusion  of  knowledge  among  the 
great  bulk  of  mankind,  by  the  impulse  and  the 
direction  which  the  diffusion  will  give  to  in- 
quiry, many  of  the  defects  and  errors  in  ex- 
isting law  and  immorality  will  in  time  be  sup- 
plied and  corrected. 

"Secondly,  though  the  many  must  trust  to 
authority  for  a  number  of  subordinate  truths, 
they  are,  competent  to  examine  the  elements 
which  are  the  groundwork  of  the  science  of 
ethics,  and  to  infer  the  more  momentous  of  the 
derivative  practical  consequences. 

And,  thirdly,  as  the  science  of  ethics  ad- 
vances and  is  cleared  of  obscurity  and  uncer- 
tainties, they  who  are  debarred  of  opportuni- 
ties of  examining  the  science  extensively  will 
find  an  authority  whereon  they  may  rationally 
rely  in  the  unanimous  or  general  agreement  of 
searching  and  impartial  inquiries." 

Again,  on  pages  177  to  180: 

"The  science  of  ethics  (or,  in  the  language 
of  Mr.  Bentham,  the  science  of  deontology) 
may  be  defined  in  the  following  manner:  It 
affects  to  determine  the  trst  of  positive  law 
and  morality,  or  it  affects  to  determine  the 
principles  whereon  they  must  be  fashioned  in 


218      MORAL  LAW  AND  CIVIL  LAW 

order  that  they  may  merit  approbation.  In 
other  words,  it  affects  to  expound  them  as  they 
should  be ;  or  it  affects  to  expend  them  as  they 
ought  to  be;  or  it  affects  to  expound  them  as 
they  would  be  if  they  were  good  or  worthy  of 
praise;  or  it  affects  to  expond  them  as  they 
would  be  if  they  conformed  to  an  assumed 
measure.  The  science  of  ethics  (or  simply 
and  briefly  ethics)  consists  of  two  depart- 
ments, one  relating  especially  to  positive  law, 
the  other  relating  to  positive  morality.  The 
department  which  relates  specially  to  positive 
law  is  commonly  styled  the  science  of  legisla- 
tion, or,  simply  and  briefly,  legislation.  The 
department,  which  relates  specially  to  positive 
morality  is  commonly  styled  the  science  of 
morals,  or,  simply  and  briefly,  morals. 

"The  foregoing  attempt  to  define  the  science 
of  ethics  naturally  leads  me  to  offer  the  fol- 
lowing explanatory  remark.  When  we  say 
that  a  human  law  is  good  or  bad,  or  is  worthy 
of  praise  or  blame,  or  is  what  it  should  be, 
or  is  what  it  ought  to  be,  or  what  it  ought  not 
to  be,  we  mean  (unless  we  intimate  our  mere 
liking  or  aversion)  this :  That  the  law  agrees 
with  or  differs  from  a  something  to  which  we 
tacitly  refer  it  as  a  measure  or  test.  For  ex- 
ample, according  to  either  of  the  hypotheses 
which  I  stated  in  preceding  lectures,  a  human 
law  is  good  or  bad  as  it  agrees  or  does  not 


PARTS  OF  THE  SAME  THING        219 

agree  with  the  law  of  God ;  that  is  to  say,  with 
the  law  of  God  as  indicated  by  the  principle  of 
utility  of  with  the  law  of  God  as  indicated  by 
the  moral  sense.  To  the  adherent  of  the 
theory  of  utility  a  human  law  is  good  if  it  be 
generally  useful,  and  a  human  law  is  bad  if  it 
be  generally  pernicious.  For,  in  his  opinion 
it  is  consonant  or  not  with  the  law  of  God 
inasmuch  as  it  is  consonant  or  not  with  the 
principles  of  general  utility.  To  the  adherent 
of  the  hypothesis  of  a  moral  sense  a  human 
law  is  good  if  he  likes  it,  he  knows  not  why; 
and  a  human  law  is  bad  if  he  hates  it,  he 
knows  not  wherefore.  For  in  his  opinion  his 
inexplicable  feeling  of  liking  or  aversion  shows 
that  the  human  law  pleases  or  offends  the 
Deity. 

"To  the  atheist  a  human  law  is  good  if  it 
be  generally  useful,  and  a  human  law  is  bad  if 
it  be  generally  pernicious.  For  the  principle 
of  general  utility  would  serve  as  a  measure  or 
test,  although  it  were  not  an  index  to  an  ul- 
terior measure  or  test.  But  if  he  call  the  law 
a  good  one  without  believing  it  useful,  or  if  he 
call  the  law  a  bad  one  without  believing  it 
pernicious,  the  atheist  merely  intimates  his 
mere  liking  or  aversion.  For  unless  it  be 
thought  an  index  to  the  law  set  by  the  Deity 
an  inexplicable  feeling  of  approbation  or  disap- 
probation can  hardly  be  considered  a  measure 


220       MORAL  LAW  AND  CIVIL  LAW 

or  test.  And  in  the  opinion  of  the  atheist  fiere 
is  no  law  of  God  which  his  inexplicable  feel- 
ing can  point  at.  To  the  believer  in  supposed 
revelation  a  human  law  is  good  or  bad  as  it 
agrees  with  or  differs  from  the  terms  wherein 
the  relation  is  expressed. 

"In  short,  the  goodness  or  badness  of  a  hu- 
man law  is  a  phrase  of  relative  or  varying  im- 
port. A  law  which  is  good  to  one  man  is  bad 
to  another  in  case  they  tacitly  refer  it  to  dif- 
ferent or  adverse  tests.  The  divine  laws  may 
be  styled  good  in  the  sense  with  which  the 
atheist  may  apply  the  epithet  to  human.  We 
may  style  them  good  or  worthy  of  praise,  in- 
asmuch as  they  agree  with  utility  considered 
as  an  ultimate  test.  And  this  is  the  only 
meaning  with  which  we  can  apply  the  epithet 
to  the  laws  of  God.  Unless  we  refer  them  to 
utility,  considered  as  an  ultimate  test,  we 
have  no  test  by  which  we  can  try  them.  To 
say  that  they  are  good  because  they  are  set 
by  the  Deity  is  to  say  that  they  are  good  as 
measured  or  tried  by  themselves.  But  to  say 
this  is  to  talk  absurdly;  for  every  object  which 
is  measured  or  every  object  which 
is  brought  to  a  test  is  compared  with  a  given 
object  other  than  itself.  If  the  laws  set  by 
the  Deity  were  not  generally  useful,  or  if  they 
did  not  promote  the  general  happiness  of  His 
creatures,  or  if  their  great  Author  were  not 


PARTS  OF  THE  SAME  THING       221 

wise  and  benevolent,  they  would  not  be  good 
or  worthy  of  praise,  but  were  devilish  and 
worthy  of  execration. 

"Before  I  conclude  the  present  digression  I 
must  submit  this  further  remark  to  the  at- 
tention of  the  reader. 

"I  have  intimated  in  the  course  of  this  di- 
gression that  the  phrase  law  of  nature  and 
the  phrase  natural  law  often  signifies  the  law 
of  God. 

"Natural  law  as  thus  understood  and  the 
natural  law  which  I  mentioned  in  my  fourth 
lecture  are  separate  expressions.  The  natural 
law  which  I  there  mentioned  is  a  portion  of 
positive  law  and  positive  morality.  It  con- 
sists of  the  human  rules,  legal  and  moral, 
which  have  obtained  at  all  times  and  obtained 
at  all  places. 

"According  to  the  compound  hypothesis 
which  I  mentioned  in  my  fourth  lecture,  these 
human  rules,  legal  and  moral,  have  been 
fashioned  on  the  law  of  God  as  indicated  by 
the  moral  sense.  Or,  adopting  the  language 
of  the  classical  Roman  jurists,  these  human 
laws,  legal  and  moral,  have  been  fashioned  on 
the  divine  law  as  known  by  natural  reason. 

"But  besides  the  human  rules  which  have 
obtained  with  all  mankind  there  are  human 
rules,  legal  and  moral,  which  have  been  limited 
to  peculiar  times  or  limited  to  peculiar  places. 


222      MORAL  LAW  AND  CIVIL  LAW 

''Now,  according  to  the  compound  hypoth- 
esis which  I  mentioned  in  my  fourth  lecture, 
these  last  have  not  been  fashioned  on  the  law 
of  God,  or  have  been  fashioned  on  the  law  of 
God  as  conjectured  by  the  light  of  utility. 

"Being  fashioned  by  the  law  of  God  as 
shown  by  an  infallible  guide,  human  rules  of 
the  first  class  are  styled  the  law  of  nature; 
for  they  are  not  of  human  position  purely  or 
simply,  but  are  laws  of  God  or  nature  clothed 
with  human  sanctions.  As  obtaining  at  all 
times  and  obtaining  at  all  places,  they  are 
styled  by  the  classical  jurists  jus  gentium  or 
jus  omnium  gentium  (the  law  of  nations  or 
the  law  of  all  nations)." 

In  a  book  on  "Right  and  Law"  by  George 
Smith,  it  is  well  said,  Section  363 :  "The 
fact  that  its  principles  are,  and  for  a  long 
time  have  been,  recognized  and  observed  by 
the  courts — some  of  them  for  ages — is  not 
inconsistent  with  the  proposition  that  they 
still  continue  to  be  principles  of  natural  right ; 
but,  on  the  contrary,  constitutes  the  most  con- 
clusive proof  of  their  character  as  such.  For 
it  may  be  stated  as  a  universal  proposition 
that  no  principle  can  even  endure  in  the  law, 
unless  it  is  a  true  principle  of  right." 

Section  366:  "Hence,  though  errors  have 
occurred  and  false  principles  have  thus  be- 
come established,  they  have  never  endured 


PARTS  OF  THE  SAME  THING        223 

but  have  ultimately  been,  or  will  be,  eradi- 
cated; and  hence  jus  has  constantly  approxi- 
mated to  perfection,  and,  as  it  now  stands,  it 
is  more  clearly  identical  with  natural  right 
than  ever  before;  or  what  is  the  same  thing 
or  may  perhaps  be  more  readily  admitted,  the 
rights  of  men  are  now  more  fully  recognized, 
and  in  theory  protected,  than  at  any  formei 
time.  Nor  can  there  be  a  greater  error  than 
to  suppose — as  it  has  been  too  common  to  sup- 
pose— that  the  logical  and  scientific  method 
which  has  effected  such  great  results,  has  be- 
come no  longer  applicable  to  the  law ;  for  the 
law  is  still  far  from  being  perfect,  especially 
in  form,  and  we  must  in  the  future  look  to 
the  same  method  for  its  perfection  and  for 
the  ultimate  realization  of  justice  and  right  or 
earth." 

Page  292  (12,  13,  14,  15  and  16)  :  "It  has 
been  the  constant  labor  of  judges,  through  all 
changes  of  society,  to  keep  the  common  law 
consistent  with  reason  and  with  itself/' 

Sir  James  Mackintosh,  cited,  Rams.  "Legal 
Documents,"  p.  26:  Quicquid  agant  homines 
is  the  business  of  the  courts,  and,  as  the 
usages  of  society  alter,  the  law  must  adapt 
itself  to  the  various  situations  of  mankind. 

"The  common  law,  which  works  itself  pure 
by  rules  drawn  from  the  foundations  of  jus- 
tice, is  superior  to  an  act  of  Parliament." 


224      MORAL  LAW  AND  CIVIL  LAW 

Lord  Mansfield,  cited  in  Austin's  Jur.  686: 
"The  law  of  England  would  be  an  absurd 
science,  were  it  founded  upon  precedent  only." 

Lord  Mansfield,  cited  by  Kent  Com.  477: 
"If  the  ethical  science  were  widely  diffused, 
the  science  would  advance  with  proportion- 
ate rapidity.  If  the  minds  of  the  many  were 
informed  and  invigorated,  their  coarse  and 
sordid  pleasure  and  their  stupid  indifference 
about  knowledge,  would  be  supplanted  by  re- 
fined amusements  and  by  liberal  curiosity;  a 
numerous  body  of  recruits  from  the  lower  or 
the  middle  classes,  and  even  from  the  higher 
classes  of  the  working  people,  would  thicken 
the  slender  ranks  of  the  reading  and  reflect- 
ing public,  the  public  which  occupies  its 
leisure  with  letters,  science  and  philosophy; 
whose  opinion  determines  the  success  or 
failure  of  books,  and  whose  notice  and  favor 
are  naturally  courted  by  the  writers. 

"And,  until  that  public  shall  be  much  ex- 
tended, shall  embrace  a  considerable  portion 
of  the  middle  and  working  people,  the  science 
of  ethics,  with  all  the  various  sciences  which 
are  nearly  related  to  ethics,  will  advance 
slowly.  It  was  the  opinion  of  Mr.  Locke,  and 
I  fully  concur  in  the  opinion,  that  there  is 
no  peculiar  uncertainty  in  the  subject  or  mat- 
ter of  these  sciences,  that  the  great  and  ex- 
traordinary difficulties  by  which  their  ad- 


PARTS  OF  THE  SAME  THING        225 

vancement  is  impeded,  are  intrinsic,  are  op- 
posed by  sinister  interests  or  by  prejudices 
which  are  the  offspring  of  such  interests ;  that 
if  they  who  seek,  or  affect  to  seek,  the  truth, 
would  pursue  it  with  obstinate  application 
and  with  due  "indifferency"  they  might  fre- 
quently hit  upon  the  object  which  they  pro- 
fess to  look  for.  Now,  few  of  them  will  pursue 
it  with  this  requisite  "indifferency"  or  im- 
partiality, so  long  as  the  bulk  of  the  public 
which  determines  the  fate  of  their  labors  shall 
continue  to  be  formed  from  the  classes  which 
are  elevated  by  rank  or  opulence,  and  from 
the  peculiar  professions  or  callings  which  are 
distinguished  by  the  name  "liberal."  In  the 
science  of  ethics,  as  in  the  other  varied 
sciences  which  are  nearly  related  .to  ethics," 
your  only  sure  guide  is  general  utility.  If 
thinkers  and  writers  would  stick  to  it  honestly 
and  closely,  they  would  frequently  enrich 
these  sciences  with  additional  truths,  or  would 
do  them  good  service  by  weeding  them  of 
nonsense  and  error.  But,  since  the  peculiar 
interests  of  particular  and  narrow  classes  are 
always  somewhat  adverse  to  the  interest  of 
the  great  majority,  it  is  hardly  expected  of 
writers,  whose  reputation  depends  upon  such 
classes,  that  they  should  fearlessly  tread  the 
path  which  is  indicated  by  the  general  well- 
being. 


226      MORAL  LAW  AND  CIVIL  LAW 

"The  indifferency  in  the  pursuit  of  truth, 
which  is  so  earnestly  inculcated  by  Mr.  Locke, 
is  hardly  to  be  expected  of  writers  who  oc- 
cupy so  base  a  position ;  knowing  that  a  frac- 
tion of  the  community  can  make  or  mar  their 
reputation,  they  unconsciously  or  purposely 
accommodate  their  conclusions  to  the  preju- 
dices of  the  narrower  public,  or,  to  borrow 
the  expressive  language  of  the  greatest  and 
best  of  philosophers,  they  begin  with  espous- 
ing the  well-being  opinions  in  fashion,  and 
then  seek  arguments  to  show  their  beauty  or 
to  varnish  or  disguise  their  deformity." 

Hurtando  vs  California,  no  U.  S.  at  p.  530 
(1883)  :  "It  is  more  consonant  to  the  true 
philosophy  of  our  historical  legal  institutions 
to  say  that  the  spirit  of  personal  liberty  and 
individual  right,  which  they  embodied,  was 
preserved  and  developed  by  a  progressive 
growth  and  wise  adaptation  to  new  circum- 
stances and  situations  of  the  forms  and  pro- 
cesses found  fit  to  give,  from  time  to  time, 
new  expression  and  greater  effect  to  modern 
ideas  of  self-government. 

"This  flexibility  and  capacity  for  growth 
and  adaptation  is  the  peculiar  boast  and  ex- 
cellence of  the  common  law.  Sir  James  Mack- 
intosh ascribed  this  principle  of  development 
to  Magna  Charta  itself.  To  use  his  own 
language:  'It  was  a  peculiar  advantage  that 


PARTS  OF  THE  SAME  THING       227 

the  consequence  of  its  principles  were,  if  we 
may  so  speak,  only  discovered  slowly  and 
gradually.  It  gave  out  on  each  occasion  only 
so  much  of  the  spirit  of  liberty  and  reforma- 
tion as  the  circumstances  of  succeeding  gen- 
erations would  safely  bear.  For  almost  five 
centuries  it  was  appealed  to  as  the  decisive 
authority  on  behalf  of  the  people,  though  com- 
monly so  far  only  as  the  necessities  of  each 
case  demanded/  " 

The  whole  system  of  common  law  and 
equity  are  growths,  as  they  now  stand, 
and  must  continue  to  grow  and  develop  with 
the  growth  of  public  education  and  intelli- 
gence and  the  increasing  demands  of  civil 
government.  But  the  common  law  and 
equity  originated,  and  have  been  developed 
by  judicial  decisions  alone,  to  meet  new  con- 
ditions and  emergencies  in  civil  government 
The  Supreme  Court  of  Indiana  has  made  de- 
cisions concerning  the  sale  of  intoxicating 
liquors,  which  have  since  been  modified  and 
disregarded.  So  that  our  Supreme  Court  en- 
tertains at  this  time  a  very  different  view,  as 
expressed  in  recent  cases,  from  its  declarations 
in  former  cases,  upon  this  subject.  The  Su- 
preme Court  of  Indiana  has  often  held  that 
the  sale  of  intoxicating  liquors  by  retail  was 
the  right  of  any  individual  without  restraint 
at  common  law,  the  same  as  any  constitutional 


228       MORAL  LAW  AND  CIVIL  LAW 

right  of  a  citizen  to  conduct  any  kind  of  busi- 
ness, and  that  the  license  system  contained 
the  only  restraints  and  regulations  for  such 
sales  of  liquor. 

The  last  of  such  expressions,  and  perhaps 
the  strongest  upon  this  subject,  is  in  the  case 
of  Haggart,  et  al.  vs.  Stehlin,  137  Ind.  43,  de- 
cided in  1893.  I*1  tms  case,  the  first  opinion 
of  the  Supreme  Court  in  effect  decided  that,  as 
the  defendant,  Stehlin,  held  a  license  and  the 
license  law  was  valid,  his  license  was  complete 
protection  against  a  proceeding  for  damages 
and  injunction  by  an  injured  residence  owner. 
The  full  bench  concurred  in  that  opinion. 

On  a  petition  for  re-hearing,  the  same 
judges  gave  it  more  careful  consideration. 
And,  when  they  had  done  that,  they  set  aside 
their  former  opinion.  In  the  second  and  final 
opinion,  notwithstanding  the  license  law 
makes  no  exceptions  as  to  localities,  in  any  of 
its  provisions,  yet  the  Court  held  Stehlin's 
orderly  saloon,  in  an  orderly  neighborhood, 
was  not  protected  by  his  license. 

The  Supreme  Court  of  Indiana  in  1855  de- 
clared the  sale  of  intoxicating  liquor  was  a 
natural  right  and  on  the  same  plane  with  dry 
goods,  grocery  business,  etc.,  subject  only  to 
regulation.  This  declaration  was  reaffirmed  a 
number  of  times  by  that  Court  during  a  period 
of  forty  years. 


PARTS  OF  THE  SAME  THING        229 

But  in  the  case  of  the  State  vs.  Gerhardt, 
145  Indiana,  Special,  page  462,  after  careful 
consideration,  the  same  court  says:  "To  sell 
intoxicating  liquor  at  retail  is  not  a  natural 
right  to  pursue  an  ordinary  calling." 

This  last  decision  is  a  revolution,  in  fact  a 
revelation,  upon  this  subject. 

This  last  decision  evidently  has  come  to 
stay. 


PARTS  OF  THE  SAME  THING        231 


CHAPTER   XIII. 
Evil  Must  Be  Suppressed  and  Good  Promoted. 

THE  growth  of  public  morality  in  civil  gov- 
ernment has  been  like  the  advance  of  an 
irresistible  army.  It  has  been  checked  and 
compelled  to  halt  and  fight  long,  desperate,  bat- 
Ites,  but  has  never  retreated.  It  has  utterly  over- 
thrown, crushed  and  destroyed  governments, 
kings,  rulers  and  people  who  have  opposed  its 
alvance.  It  is  persuasive,  patient  and  kind  to 
such  as  heed  warnings,  but  merciless  and  re- 
lentless to  those  who  will  not  yield.  It  will  not 
consent  that  immorality,  or  any  system  or  en- 
terprise or  business  that  is  immoral  or  tends  to 
immorality,  or  has  an  immoral  influence,  shall 
in  any  way  be  sanctioned  or  excused.  The  in- 
stitution of  slavery,  which  claimed  divine  sanc- 
tion and  the  authority  of  divine  revelation, 
which  was  once  accepted  by  all  men,  became 
an  institution  especially  offensive  to  the  ad- 
vance of  morality,  and  was  ultimately  de- 
stroyed by  the  decision  of  the  court  upon  moral 
principles  in  England,  and  by  the  action  of  the 
chief  executive  in  the  United  States  upon  the 


232      MORAL  LAW  AND  CIVIL  LAW 

same  ground,  and  other  nations  are  obeying 
the  same  high  command  and  abolishing  the  in- 
stitution among  their  people,  so  that  it  is  un- 
known to-day  among  all  civilized  people.  Gam- 
bling, for  amusement  or  business,  was  once 
thought  to  be  a  mere  matter  of  individual  taste 
and  privilege,  but  when  its  immorality  and  bad 
influence  were  made  to  appear  it  was  outlawed 
everywhere  from  nation  to  nation.  Once  the 
gladiators  furnished  entertainment  for  a  multi- 
tude of  men,  women  and  children  by  sanction 
of  government  and  universal  consent ;  but  that 
has  gone  with  the  fierce  brutality  of  long  ago, 
and  we  have  so  far  progressed  that  prize  fight- 
ing may  now  be  understood  as  unlawful  in 
every  State  in  this  Union,  and  is  rapidly  being 
driven  from  the  soil  of  other  nations.  We  have 
so  far  progressed  in  our  application  of  the  sen- 
sitive demands  of  morality  in  this  direction 
that  bear  baiting,  bull  fighting,  cock  fighting, 
dog  fighting,  and  even  rat  baiting  are  all  made 
unlawful. 

Wager  of  battle  between  disputants  over 
personal  matters  or  property  rights  was  once 
a  legal  method  of  settling  questions,  but  we 
have  now  reached  the  point  where  dueling, 
fighting,  and  even  quarreling  over  matters  of 
dispute  are  forbidden  by  law.  The  lottery  busi- 
ness, once  taken  to  be  a  legitimate  business  and 
matter  of  amusement,  so  highly  regarded  in 


PARTS  OF  THE  SAME  THING        233 

the  United  States  within  the  recollection  of 
persons  now  living  as  that  it  was  made  the 
means  of  raising  funds  for  erecting  public 
buildings  in  the  capital  city  of  the  nation ;  was 
chartered  by  provision  of  the  Indiana  Territo- 
rial Legislature  in  1807  in  the  Vincennes  Uni- 
versity in  Indiana,  by  which  a  library  for  that 
institution  of  learning  was  to  be  secured ;  was 
considered  proper  means  for  raising  money 
with  which  to  build  churches,  and  furnished 
entertainments  for  church  socials;  but  the  im- 
moral character,  influence,  and  results  of  the 
lottery  business  became  so  serious  that  it  was 
declared  by  Lord  Holt  from  the  King's  Bench 
in  England  long  ago,  without  any  act  of  Par- 
liament upon  the  subject,  to  be  unlawful  be- 
cause of  its  immorality.  For  the  same  reason 
it  was  always  unlawful  if  the  principles  of  law 
had  been  properly  applied  in  the  United  States. 
Every  State  in  this  nation  has  finally  declared 
the  lottery  business  to  be  unlawful,  as  has  the 
Supreme  Court  of  the  United  States.  It  has 
been  hunted  down  and  been  driven  from  our 
shores,  and  even  from  its  temporary  resting 
place  in  the  government  of  Mexico,  because  of 
the  immorality  and  bad  influence  that  neces- 
sarily followed  in  its  wake.  There  is  one  uni- 
versal, thoroughly  settled  rule  of  law  in  this 
nation,  not  founded  upon  legislation,  but  older 
than  legislation,  often,  however,  recognized 


234      MORAL  LAW  AND  CIVIL  LAW 

and  supported  by  legislation,  that  any  business 
that  is  immoral,  tends  to  immorality,  or  results 
in  promoting  immorality,  is  unlawful.  It  is 
not  only  unlawful,  but  cannot  be  made  lawful 
by  any  act  of  the  Legislature,  nor  long  main- 
tained as  lawful  even  by  decisions  of  any  court 
of  last  resort.  There  are  two  chief  concerns 
in  civil  government  which  have  been  estab- 
lished by  the  States  in  the  Union : 

First,  to  promote  morality,  and,  second,  to 
suppress  immorality. 

I  quote  again  upon  this  proposition,  Art.  8, 
Sec.  i,  of  the  present  Constitution  of  Indiana: 
"Knowledge  and  learning  generally  diffused 
throughout  a  community  being  essential  to 
the  preservation  of  free  government,  it  shall  be 
the  duty  of  the  General  Assembly  to  encourage 
by  all  suitable  means,  moral  intellectual,  scien- 
tific, and  agricultural  improvements,  and  to 
provide  by  law  for  a  general  and  uniform  sys- 
tem of  common  schools,  where  tuition  shall  be 
without  charge  and  equally  open  to  all." 

It  must  be  kept  in  mind  that  morality  is  a 
science ;  as  much  so  as  mathematics,  the  oldest 
science  known  among  men.  In  pursuance  of 
the  constitutional  provision  I  have  just  quoted, 
the  Legislature  of  Indiana  long  ago  chartered 
the  State  Board  of  Agriculture  to  encourage 
the  culture  of  whatever  the  soil  can  produce. 
The  Legislature  has  also  established  at  great 


PARTS  OF  THE  SAME  THING        235 

expense,  in  obedience  to  this  section  of  the 
Constitution,  a  State  University  for  general 
literary  culture,  Purdue  University  for  special 
instruction,  State  Normal  School  for  preparing 
teachers,  schools  for  the  instruction  of  the  deaf 
and  dumb  and  blind  and  the  feeble-minded,  and 
a  general  system  of  common  schools  providing 
for  the  regulation  and  licensing  of  school- 
teachers. This  section  is  by  far  the  most  im- 
portant section  in  our  Constitution,  and  the 
first  subject  in  the  section,  the  chief  and  great- 
est subject  which  the  Legislature  is  com- 
manded to  "encourage  by  all  suitable  means," 
is  morality.  Morality  is  a  specific  and  inde- 
pendent subject  in  the  Constitution,  as  much 
as  science,  agriculture,  or  education. 

This  section  was  taken  as  a  section  from  our 
former  Constitution,  with  only  two  changes 
of  any  importance.  One  of  these  is  that  moral- 
ity is  taken  from  a  subordinate  position  in  the 
former  Constitution  and  given  a  chief  place  in 
the  section  in  our  present  Constitution,  and 
the  subject  of  education  is  added. 

The  Legislature  is  given  the  power,  and  is 
commanded  by  this  constitutional  provision  to 
do  anything  and  everything  that  may  be  neces- 
sary or  required  to  promote  education,  and  to 
suppress  everything  that  retards  or  has  a  ten- 
dency to  retard,  interfere  with,  or  prevent  edu- 
cation .  It  has  the  same  authority  and  has  the 


236       MORAL  LAW  AND  CIVIL  LAW 

same  command  as  to  the  subject  of  agriculture 
and  scientific  information,  and  has  the  same 
authority  and  has  the  same  command  as  to  the 
subject  of  morality.  The  Legislature  in  the 
discharge  of  its  duty  has  carefully  provided  a 
public  school  system  with  strict  requirements 
as  to  the  qualifications  of  teachers.  If  the 
Legislature  were  to  provide  that  the  schools 
should  teach  that  the  earth  is  flat,  and  that  the 
sun  literally  rises  and  sets,  it  will  be  conceded 
that  such  a  law  would  be  absolutely  void. 

The  story  is  told  that  in  an  early  day  in  In- 
diana, long  before  this  constitutional  provi- 
sion and  the  coming  of  our  common  school 
system,  a  school-teacher  went  into  one  of  our 
country  neighborhoods  to  secure  the  signa- 
tures of  parents  to  an  article  employing  him 
as  a  teacher  and  agreeing  to  send  their  children 
to  his  school.  He  was  so  fortunate  as  to  be 
admitted  to  one  of  those  quasi  social  gather- 
ings so  common  in  an  early  day  in  this  State, 
known  as  wool  pickings,  where  the  women  of 
the  neighborhood  met  together  to  enjoy  them- 
selves socially,  picking  the  burs  and  Spanish 
needles  out  of  the  wool,  so  that  it  could  be 
used.  He  made  his  business  known  to  the 
women,  and  asked  those  who  were  heads  of 
families  to  sign  it,  and  the  others  to  speak  to 
their  husbands  or  fathers  about  it  so  that  they 
would  be  ready  when  he  went  around  to  see 


PARTS  OF  THE  SAME  THING       237 

them.  He  was  a  fluent  talker,  and  had  had 
much  experience  in  his  work,  and  had  made  a 
very  favorable  impression  upon  his  auditors. 
He  was  on  the  point  of  taking  his  departure 
when  one  of  the  women  informed  him  that 
there  had  been  trouble  in  that  neighborhood 
with  a  former  teacher  on  the  question  whether 
the  earth  was  round  or  flat,  and  that  she  and 
her  husband  would  want  to  know  his  views  on 
that  subject  before  they  signed  that  article. 
Another  woman  showed  very  clearly  that  the 
subject  was  a  very  familiar  one  to  her,  and  that 
she  differed  from  the  first  speaker,  and  de- 
manded that  he  should  announce  his  views. 
He  saw  at  once  that  he  had  a  difficult  case  on 
his  hands,  but  his  skill  was  equal  to  the  occa- 
sion. Every  eye  was  on  him,  and  they  awaited 
his  answer.  He  answered  that  he  had  been 
educated  in  both  schools  and  would  teach  that 
the  earth  was  round  or  flat,  just  as  they  pre- 
ferred. After  the  adoption  of  this  constitu- 
tional provision  and  the  legislation  in  pursu- 
ance thereof,  that  teacher  with  all  the  quacks 
like  him  took  their  departure  from  Indiana.  It 
would  not  be  a  pleasant  subject  for  me,  a  native 
Hoosier,  to  dwell  upon  or  consider  at  great 
length  the  condition  of  Indiana  as  to  illiteracy 
when  our  present  Constitution  was  adopted. 
But  I  take  great  pleasure  in  calling  attention 
to  the  fact  that  Indiana  has  made  such  progress 


238      MORAL  LAW  AND  CIVIL  LAW 

under  this  constitutional  provision  and  her  fa- 
vorable legislation,  with  her  licensed  and  quali- 
fied school-teachers  and  universities  and 
schools,  that  no  Hoosier  need  be  ashamed  of 
the  showing  we  are  now  able  to  make.  We 
have  also  made  commendable  progress  in  agri- 
culture and  scientific  departments. 

I  make  the  statement  that  we  have  made 
less  progress  in  moral  science  and  morality 
than  we  have  in  any  other  science;  much  less 
than  in  education  or  agriculture.  It  will  be 
found,  upon  investigation,  that  old  methods  of 
teaching  have  been  abandoned,  and  amazing 
improvements  in  methods  and  in  good  results 
have  been  accomplished  with  wonderfully  im- 
portant and  rapidly  growing  facilities,  con- 
veniences, and  capacity  for  teaching  and  im- 
parting and  acquiring  education ;  old  methods 
of  agriculture  have  been  abandoned,  and  the 
fields  have  been  cleared  of  trees,  stumps,  and 
stones.  Machinery  and  mechanical  improve- 
ments have  been  brought  into  use  to  such  an 
extent  that  a  person  can  hardly  comprehend 
the  bettered  condition  and  wonderful  advance 
that  has  been  made  upon  this  subject  since  the 
adoption  of  our  present  Constitution.  The  dis- 
coveries of  our  people,  and  the  adoption  of  the 
discoveries  made  by  others,  with  instructions 
given,  have  made  the  growth  of  scientific  in- 
formation in  the  same  period  in  our  State  a 


PARTS  OF  THE  SAME  THING        239 

matter  of  constant  amazement.  In  education, 
agriculture,  and  science  it  is  necessary  only  to 
call  attention  to  the  subjects  to  startle  a  per- 
son with  his  own  observations  and  the  evi- 
dences all  about  him  of  the  amazing  advance 
in  these  regards.  Now,  when  I  ask  my  fellow- 
citizens  in  this  State  whether  we  have  pro- 
gressed in  sound  morality  since  1851,  they  stare 
at  me  and  either  speak  with  great  hesitation 
and  uncertainty  or  ask  time  to  consider  before 
they  attempt  to  answer  at  all. 

We  are  proud  of  our  advance  in  education, 
in  agriculture,  and  scientific  information  in  In- 
diana during  the  last  twenty-five  years ;  but  no 
man  is  at  all  proud  or  satisfied  with  our  ad- 
vance in  morality.  I  do  not  want  to  speak  dis- 
paragingly upon  this  subject  further  than  I  am 
compelled.  We  have  advanced  in  moral  cul- 
ture, and  have  reason  for  encouragement,  not 
so  much  at  the  extent  of  our  advancement,  but 
that  we  have  advanced  at  all,  and  have  not  in 
fact  retreated.  I  think  no  man  who  has  made 
careful  investigation  will  claim  that  moral  im- 
provement has  been  equal  to  our  improvement 
in  these  other  subjects.  This  same  state  of 
facts  in  regard  to  Indiana  is  true  generally  in 
regard  to  every  other  State  in  the  Union. 
There  has  either  been  less  interest  taken  in 
the  subject  of  morality  than  in  education,  or 
agriculture,  or  the  sciences,  or  else  there  has 


240      MORAL  LAW  AND  CIVIL  LAW 

been  some  greater  obstruction  in  this  line  of 
culture.  Let  us  look  briefly  at  the  methods  of 
promotion  in  other  subjects,  and  for  the  ob- 
struction thereto,  and  for  the  promotion  of  mo- 
rality and  obstruction  thereto,  for  the  purpose 
of  finding,  if  possible,  the  cause  which  has  pro- 
duced this  disparagement.  The  State  of  Indi- 
ana, by  her  constitutional  provision  and  legisla- 
tion based  upon  it,  took  the  subjects  of  mor- 
ality, agriculture,  scientific  information,  and 
education  under  its  special  patronage  for  the 
purpose  of  promoting  these  subjects.  For  the 
purpose  of  promoting  agriculture  the  Legisla- 
ture passed  laws  providing  for  a  system  of 
highways,  drainage,  and  many  other  matters, 
and  also,  by  penal  acts,  fines,  and  imprison- 
ments, restraining  stock  from  running  at  large 
to  prey  upon  the  crops,  fencing  of  railroads, 
cutting  of  noxious  weeds,  and  has  encouraged 
by  rewards  care  in  the  production  of  the  soil, 
and  in  every  way  preventing  what  would  re- 
sult in  or  tend  to  the  general  obstruction  of  ag- 
riculture. There  is  not  one  influence  that  is 
known  to  have  an  injurious  effect  upon  general 
agriculture  that  is  not  forbidden  by  the  law  of 
Indiana  and  sought  to  be  removed. 

Concerning  the  subjects  of  education,  agri- 
culture, or  science,  which  are  all  the  subjects 
except  morality  mentioned  in  the  constitu- 
tional provision  referred  to,  nothing  is  permit- 


PARTS  OF  THE  SAME  THING        241 

ted  by  law,  or  in  any  way  legalized  or  sanc- 
tioned, which  is  understood  to  have  a  tendency 
to  interfere  with  or  obstruct  the  work  or  de- 
velopment of  either  of  these  subjects. 

These  subjects  have  a  free  course  and  a  full 
chance  to  exert  all  their  influence.  Their  path- 
way is  cleared  before  them.  Universities,  col- 
leges, schools,  and  about  sixteen  thousand 
teachers  are  maintained  and  enormous  expense 
incurred  by  the  State  in  specific  instruction 
upon  these  subjects.  For  all  of  this,  with  the 
great  prospects  ahead  of  us  in  these  regards,  let 
us  all  rejoice.  Our  school  law  provides  that 
teachers  must  pass  an  examination,  covering 
certain  branches  of  education,  and  such 
branches  must  be  taught,  but  they  are  not  re- 
quired to  be  examined  upon  moral  science  or 
to  teach  it. 

In  many  schools  in  Indiana,  heretofore, 
teachers  have  been  given  to  understand  that 
they  were  not  to  teach  the  whole  truth  upon 
certain  subjects  which  are  not  only  matters  of 
scientific  truth,  but  also  important  to  the  in- 
terests of  public  morality. 

To  the  credit  of  our  Legislature  it  passed  an 
act  compelling  school  board  trustees,  superin- 
tendents, and  teachers  to  teach  the  whole  truth. 
It  is  humiliating  to  admit  that  evil  influences 
have  been  so  great  in  our  State,  as  has  been 


242      MORAL  LAW  AND  CIVIL  LAW 

true  of  many  other  States,  that  even  science 
was  compelled  to  close  its  lips. 

It  is  another  evidence  of  the  irresistible  pow- 
er of  moral  force  that  it  can  gain  such  victories. 

Strange  as  it  may  seem  science  had  submit- 
ted and  the  public  school  system  had  been  sub- 
jugated, and  morality  alone  came  to  the  res- 
cue. 

Hereafter  the  injurious  effects  of  alcoholic 
drinks  and  narcotics  will  be  taught  under  com- 
pulsion in  all  our  public  schools.  Morality  is 
the  protecting  angel  for  all  truth. 

I  have  said  that  the  Legislature  of  Indiana 
has  taken  care  and  provided  at  great  expense 
and  by  suitable  means  for  general  education 
and  specific  instruction  in  agriculture  and  the 
sciences,  but  I  inquire,  What  system  and  what 
means  have  been  provided  for  specific  instruc- 
tion in  moral  science? 

This  science,  though  made  the  chief  subject 
and  greatest  concern  in  the  Constitution,  has 
absolutely  no  legislative  provision  for  its  pro- 
motion. There  must  be  legislative  provision 
made  for  intsruction  in  the  principles  and  rules 
and  their  application  in  moral  science.  What- 
ever instruction  in  the  great  department  of 
morality  there  may  have  been  in  the  public 
schools  it  has  been  incidental  and  as  a  side 
matter  of  minor  importance  to  other  branches 
of  education  of  absolute  importance. 


PARTS  OF  THE  SAME  THING       243 

Heretofore  the  Legislature  has  contented  it- 
self in  regard  to  this  subject  by  a  somewhat 
vigorous  effort  to  suppress  acts  of  immorality. 

The  theory  is  thoroughly  settled  that  if  an 
act,  transaction,  or  business  is  immoral,  or 
tends  to  immorality,  it  must  be  suppressed  by 
law. 

The  mere  effort,  however  vigorous,  on  the 
part  of  the  State  to  suppress  immorality  is  not 
sufficient  to  meet  the  demands  upon  this  sub- 
ject. 

But  the  effort  to  suppress  immorality  has  not 
been  and  is  not  now  consistent,  and  fails  at 
most  important  points. 

I  call  attention  to  the  suitable  means  and 
methods  by  which  the  State  has  sought  to 
promote  the  interest  of  these  other  subjects. 

For  education  it  has  chartered  and  supports 
great  institutions  and  a  general  system.  For 
agriculture  it  has  done  the  same  thing.  Like 
provisions  have  been  made  for  science. 

In  1867  the  Legislature  of  Mississippi  grant- 
ed a  charter  (license)  to  the  Mississippi  Agri- 
cultural, Educational,  and  Manufacturing  Aid 
Society,  with  the  right  to  issue  and  sell  lottery 
tickets  and  to  conduct  the  lottery  business  in 
consideration  of  the  annual  sum  of  $5,000,  and 
$r,ooo  in  tax  and  one  half  of  one  per  cent  of 
the  amount  received  from  the  sale  of  the  tick- 


244       MORAL  LAW  AND  CIVIL  LAW 

ets  to  be  paid  into  the  State  treasury  for  the 
privilege  granted. 

A  question  arose  as  to  the  validity  of  that 
act  of  legislation.  The  society  claimed  that  it 
had  secured  vested  right  by  virtue  of  that  legis- 
lation, public  acquiescence,  and  large  invest- 
ment of  money  in  the  business.  That  question 
passed  through  the  regular  course  to  the  Su- 
preme Court  of  the  United  States  in  the  case  of 
Stone  et  al  vs.  Mississippi,  101  U.  S.,  814.  That 
court  considered  the  act  of  the  Legislature  with 
all  that  it  contemplated,  and  also  the  lottery 
business  with  all  that  it  contemplated,  and  the 
real  character  of  the  business,  and  decided  that 
the  lottery  business  was  inherently  immoral, 
and  the  legislative  act  chartering  the  business 
was  void.  '  Concerning  lotteries  the  court  said : 
"We  are  aware  that  formerly,  when  the  sources 
of  public  revenue  were  fewer  than  now,  they 
were  used  in  all  or  some  of  the  States,  and  even 
in  the  District  of  Columbia,  to  raise  money  for 
the  erection  of  public  buildings,  making  public 
improvements,  and  not  infrequently  for  edu- 
cational and  religious  purposes;  but  this  court 
said,  more  than  thirty  years  ago,  speaking 
through  Mr.  Justice  Grier,  in  Phalen  vs.  Vir- 
ginia, 8  How.,  163,  168,  that  'experience  has 
shown  that  the  common  forms  of  gambling 
are  comparatively  innocuous  when  placed  in 
contrast  with  the  widespread  pestilence  of  lot- 


PARTS  OF  THE  SAME  THING        245 

teries.  The  former  are  confined  to  a  few  per- 
sons and  places,  but  the  latter  infests  the  whole 
community ;  it  enters  every  dwelling ;  it  reaches 
every  class;  it  preys  upon  the  hard  earnings 
of  the  poor;  and  it  plunders  the  ignorant  and 

the  simple That  they  are  demoralizing 

in  their  effects,  no  matter  how  carefully  regu- 
lated, cannot  admit  of  a  doubt.  When  the 
government  is  untrammeled  by  any  claim  of 
vested  rights  or  chartered  privileges  no  one 
has  ever  supposed  that  lotteries  could  not  be 
lawfuly  suppressed,  and  those  who  manage 
them  punished  severely  as  violators  of  the  rule 
of  social  morality." 

Of  the  legislative  act  the  court  said,  "No 
Legislature  can  bargain  away  the  public  mor- 
als or  the  public  health  or  the  public  peace." 
The  court  held  that  the  act  of  the  Legislature 
of  Mississippi  licensing  the  lottery  was  void. 

Finally  the  public  came  to  see  by  the  light 
thrown  upon  the  business  that  it  was  immoral 
and  dishonorable.  The  decision  of  the  Court 
of  Appeals  in  Kentucky  to  which  I  have  re- 
ferred followed,  and  declared  that  the  legisla- 
tive act  licensing  the  Louisville  Lottery  was 
void,  and  that  no  act  could  be  passed  that 
would  be  valid  for  such  business  because  of  its 
immorality,  and  the  Louisville  Lottery  fled 
from  the  State  of  Kentucky  never  to  return. 

A   like   history   has   been   recorded   of   the 


246      MORAL  LAW  AND  CIVIL  LAW 

Louisiana  Lottery  since  the  Louisville  Lottery 
was  driven  out  of  existence  by  the  courts. 

The  law  is  now  settled  in  this  nation  that  no 
Legislature  can  license  the  lottery  business, 
because  of  its  bad  effect  upon  public  morals. 

The  United  State  government  has  arrayed 
all  its  power  and  closed  its  mails  against  this 
business,  and  woe  be  to  the  transgressors. 

President  Harrison  made  it  the  subject  of  a 
special  message  to  Congress,  urging  immediate 
action  for  the  protection  of  an  imperiled  na- 
tion. 

The  Louisiana  Lottery  had  secured  such  an 
influence  in  the  State  of  Louisiana  that  it  is 
evident  it  could  not  have  been  broken  up  by 
action  of  State  authorities  if  the  United  States 
government  had  not  closed  its  mails  and 
declared  hostility  against  it. 

The  judicial  action  against  the  lottery  busi- 
ness is  perhaps  the  best  illustration  of  the 
wonderful  growth  in  public  sentiment  against 
immorality,  and  also  forcibly  shows  the  growth 
of  legal  comprehension  of  moral  principles  and 
their  application  to  civil  affairs. 

Extensive  and  expensive  provisions  have 
been  made  for  teaching  and  promoting  all  the 
other  subjects  mentioned  in  the  constitutional 
provision  in  Indiana  except  morality,  and  fu- 
tile attempts  have  been  made  to  authorize 
things  against  the  interest  of  morality. 


PARTS  OF  THE  SAME  THING        247 

It  may  be  said  that  the  State  in  the  erection 
of  great  buildings,  and  a  school  system  and 
costly  provisions  for  education,  and  by  her 
chartered  institutions  and  aid  to  agriculture, 
and  her  encouragement  and  aid  to  scientific 
culture,  has  sought  to  aid  and  has  promoted 
the  subject  of  morality. 

But,  I  ask,  Has  not  morality,  unaided  by  the 
State,  done  more  for  each  of  these  subjects 
named  within  the  Constitution  than  they  have 
done  for  morality  with  all  their  aid? 

I  humbly  claim  for  morality  stately  build- 
ings, chartered  institutions,  public  funds,  legis- 
lative provision  commensurate  with  the  im- 
portance of  the  subject — in  the  language  of 
the  Constitution,  "suitable  means"  for  its  pro- 
motion. 

Jehoshaphat,  in  the  third  year  of  his  reign, 
sent  to  his  princes  Ben-hail,  Obadiah,  Zecha- 
riah,  and  to  Nethaneel  and  to  Michaiah,  to 
teach  in  the  cities  of  Judah,  and  with  them 
nine  Levites  and  two  priests. 

"And  they  taught  in  Judah,  and  had  the 
book  of  the  law  of  the  Lord  with  them,  and 
went  about  throughout  all  the  cities  of  Judah, 
and  taught  the  people." 

It  is  recorded  that  Jehosaphat  waxed  great 
and  had  much  business  in  the  cities  of  Judah. 
There  certainly  ought  to  be  somebody,  and  by 
some  means  officially,  teaching  in  the  cities 


248      MORAL  LAW  AND  CIVIL  LAW 

of  this  nation  upon  the  subject  of  morality. 

Reading  thanksgiving  proclamations  by  our 
presidents  and  governors  we  are  almost  start- 
led by  the  devout  spirit  manifested,  and  if  it 
were  not  for  our  observations  would  expect  to 
see  every  place  of  divine  worship  filled  with 
people  on  the  day  set  apart  for  that  purpose. 

The  rush  of  college  students  and  public 
school  boys,  with  an  occasional  college  pres- 
ident and  professors,  with  an  army  of  young 
and  middle-aged  men  on  such  occasions  to  wit- 
ness football  games  and  other  sports,  and  the 
meager  attendance  on  divine  worship  are 
enough  to  start  the  inquiry  whether  this  cus- 
tom has  not  become  a  mockery  and  would  bet- 
ter be  abandoned. 

I  venture  to  suggest  that  even  the  sermons 
on  the  occasions  seem  to  be  vicing  with  the 
proclamations  in  high-sounding,  far-away  pi- 
ety and  not  quite  enough  of  common  morality 
for  strengthening  the  citizen  in  the  duties  of 
everyday  life. 

We  have  up  to  this  point  been  considering 
the  substance  of  things,  what  has  been  accom- 
plished, methods  tested,  and  the  principles  at 
work. 

Mythology  says  that  Hercules  was  destined 
by  the  gods  to  complete  twelve  great  under- 
takings before  his  work  was  ended. 

Shall  we  stop  here  in  the  consideration  of 


PARTS  OF  THE  SAME  THING        249 

the  work  and  destiny  of  the  twin  giants,  moral 
law  and  civil  law? 

To  advance  is  not  an  easy  undertaking, 

Morality  fights  no  sham  battles  nor  assails 
an  unarmed  foe. 

We  must  take  our  places  in  the  ranks  and 
perform  our  duty  or  stand  aside  while  the  col- 
umn goes  by. 

We  can  hear  the  marching  columns  sing: 

"We  have  battles  to  fight ; 

We  have  foes  to  subdue; 
Time  waits  for  no  man, 

And  we  wait  not  for  you. 

"The  mower  mows  on, 

Though  the  adder  may  writhe, 

And  the  copperhead  coil 

'Round  the  blade  of  the  scythe." 

We  have  called  attention  specifically  to 
some  things  that  have  been  tolerated  and 
some  that  have  been  approved  and  authorized 
by  law,  but  have  at  last  been  forbidden  and 
suppressed  because  of  thier  immorality.  As 
a  matter  of  legal  principle  to  which  there  is 
not  an  exception  in  its  application,  whatever 
is  immoral  or  tends  to  immorality  must  be  sup- 
pressed and  cannot  exist  by  permission.  The 
great  undertakings  that  civil  government  is 


250      MORAL  LAW  AND  CIVIL  LAW 

destined  yet  to  complete  no  man  has  presumed 
to  number.  That  they  are  many  no  man  will 
question. 

That  these  are  to  be  worked  out  by  citizens 
through  the  application  of  legal  principles  and 
methods  must  be  clear  to  us  all. 


PARTS  OF  THE  SAME  THING        251 


CHAPTER    XIV. 
No  Privileges  for  Evil. 

FROM  considerations  presented  in  former 
chapters  in  this  work  I  feel  safe  in  saying 
that  whenever  the  question  is  settled  that 
any  business  or  any  conduct  is  immoral,  that 
settles  another  question  that  follows  as  an  in- 
evitable conclusion,  that  business  or  conduct 
at  once  becomes  an  outlaw  and  cannot  be  given 
any  legal  status  by  any  power  known  to  civi- 
lized government. 

It  has  taken  a  long  time  in  many  cases  to 
settle  the  question  of  immorality. 

As  has  been  shown  in  many  cases  cited 
herein,  enterprises,  institutions,  and  conduct 
long  accepted  and  looked  upon  as  not  matters 
of  public  concern,  are  sometimes  suddenly 
seen  to  be  improper  and  lawless  and  dangerous 
to  the  public  welfare.  In  many  cases  long  dis- 
cussion, growth  of  intelligence,  and  sometimes 
bloody  strife  have  been  required  to  bring  out 
full  comprehension  of  the  real  character  of 


252       MORAL  LAW  AND  CIVIL  LAW 

great  evils.  Some  of  the  greatest  evils  have 
not  always  and  under  all  conditions  been  evils 
or  immoral. 

Human  slavery  has  its  favorable  conditions. 

Daniel  was  a  captive  slave  in  Babylon,  and 
Joseph  was  sold  for  twenty  pieces  of  silver, 
but  each  reached  a  position  that  would  gratify 
the  most  ambitious,  and  for  which  a  man 
could  afford  to  become  a  slave.  Eleazer  was 
Abraham's  slave,  but  no  greater  advantage 
could  have  fallen  to  the  lot  of  Eleazer,  and 
was  greatly  to  Abraham's  advantage. 

In  unnumbered  cases  men  and  women, 
brought  by  force  from  their  savage  and  beastly 
condition  in  Africa  to  the  United  States, 
became  the  property  and  were  brought  under 
the  influence  of  humane  masters  and  religious 
teachings,  which  has  been,  and  will  be  to  them 
and  to  their  children  an  untold  blessing  in  all 
time  to  come. 

Many  have  been  the  cases  where  the  slave 
in  old  age,  disability,  or  sickness  was  free 
from  care  and  his  wants  met  by  a  kind-hearted 
master. 

Many  things  could  be  truthfully  said  in 
favor  of  African  slavery. 

We  can  easily  call  up  the  scene  of  life  be- 
fore the  civil  war  in  this  nation,  when,  as  they 
were  called,  the  old  colored  aunties  and  uncles 
clung  to  their  master  and  mistress  and  to  their 


PARTS  OF  THE  SAME  THING       253 

children  with  a  childlike  and  simple  affection 
that  was  most  beautiful. 

I  have  in  mind  actual  cases  where  these  old 
uncles  and  aunties  loved  their  master  and 
mistress,  and  cared  for  and  loved  their  little 
and  grown  masters  and  mistresses  in  the 
family,  with  that  devotion  we  all  long  for,  but 
seldom  see,  in  the  homes  in  these  days  be- 
tween employer  and  employe^.  That  tender 
relation  between  Uncle  Tom  and  Little  Eva, 
truthfully  pictured  by  Mrs.  Stowe,  has  made 
many  a  little  girl  who  has  contemplated  it 
wish  she  had  such  a  faithful  friend  as  Uncle 
Tom. 

I  say  that  slavery  had  many  things  that 
could  be  said  with  great  force  in  its  favor.  So 
strong  were  these  favorable  arguments  for 
slavery  that  it  took  two  hundred  and  fifty 
years  and  an  awful  experience  to  overcome 
them.  That  other  side  of  slavery  given  in 
Uncle  Tom's  Cabin  was  always  true  in  the 
United  States. 

Slavery  was  always  wrong  in  principle,  and 
its  general  influence  and  results  were  always 
bad. 

Thomas  Jefferson,  when  he  contemplated 
the  nature  of  the  institution  of  slavery  more 
than  fifty  years  before  the  civil  war,  uttered 
the  honest  sentiment  of  his  heart  when  speak- 
ing of  slavery.  He  said,  "I  tremble  for  my 


254      MORAL  LAW  AND  CIVIL  LAW 

country  when  I  reflect  that  God  is  just  and 
that  His  justice  will  not  slumber  forever." 

Well  might  Jefferson  tremble  under  such 
contemplation  when  he  saw  that  institution 
recognized  and  to  be  continued  by  public 
acquiescence. 

Jefferson's  fears  were  well  founded.  A  just 
God  did  amid  the  thunder  and  lightning  of 
war  destroy  the  wicked  institution. 

Slavery,  from  that  fatal  day  in  the  year 
1620,  was  always  legally  wrong  and  immoral 
as  an  institution,  and  by  permitting  it  to  exist 
anywhere  in  the  United  States  the  people  in- 
vited a  storm  that  swept  it  away  at  such  awful 
cost.  Every  year  that  it  continued  made  the 
cost  of  its  removal  the  greater. 

There  were  many  things  that  could  be  said 
for  the  lottery  business.  It  was  often  used 
as  a  method  for  raising  money  for  good 
purposes  —  in  erecting  public  buildings  and 
educational  enterprises,  and  for  many  oth- 
er purposes  that  were  laudable.  In  such  cases 
some  consideration  was  given  for  every  in- 
vestment and  ticket  sold. 

It  took  centuries  to  fully  expose  the  wrong 
principle  and  immorality  in  this  business. 
When  that  was  accomplished  the  lottery  busi- 
ness became  per  se  unlawful,  and  cannot  be 
authorized  under  anv  conditions. 


PARTS  OF  THE  SAME  THING        255 

The  United  States  government  is  founded 
on  the  right  of  religious  liberty. 

Men  may  teach,  and  organize  to  teach,  if 
they  desire,  that  there  is  no  God,  or  they  may 
adopt  any  form  of  worship  and  teach  any- 
thing as  to  the  character  of  the  divine  Being 
they  like,  or  promulgate  any  religious  creed, 
so  long  as  they  keep  within  the  bounds  of 
public  morality.  But  they  cannot  transcend 
that  boundary. 

The  Mormon  Church  taught  and  practiced 
plurality  of  wives.  For  that  immorality  in  re- 
ligious belief  the  government  by  force  broke 
up  their  religion,  made  it  unlawful,  and  con- 
fiscated the  great  estate  of  Brigham  Young. 
Many  good  things  could  be  said  for  the  Mor- 
mon Church,  but  in  so  far  as  it  encouraged  or 
promoted  immorality  it  was  an  outlaw,  as  in 
any  other  case. 

It  might  be  said  that  if  two  or  more  persons 
for  mere  pastime  and  amusement,  see  fit  to  put 
up  a  small  wager  on  a  quiet  game,  it  concerns 
no  one  but  themselves. 

But  gambling  is  on  a  wrong  and  dangerous 
principle  and  is  immoral,  and  for  that  reason 
all  public  and  private  gambling,  even  in  the 
quietude  of  a  private  home,  is  rigidly  forbid- 
den. 

I  have  called  attention  to  the  fact  that  the 
theory  of  chartering,  incorporating,  and  li- 


256      MORAL  LAW  AND  CIVIL  LAW 

censing  proper  and  useful  enterprises  has  won- 
derfully developed  and  is  growing  in  favor 
rapidly. 

The  words  chartered,  incorporated,  or  li- 
censed mean  substantially  the  same  thing. 

While  this  theory  has  worked  satisfactorily 
and  grown  in  favor  when  applied  to  useful  and 
moral  enterprises,  it  has  correspondingly 
worked  unsatisfactorily  and  disastrously 
whenever  applied  to  any  immoral  enterprises. 
There  is  not  an  exception  to  this  rule  to  be 
found  in  history,  covering  three  thousand 
years,  in  the  practical  working  of  every  sys- 
tem which  gave  such  theory  recognition  and 
consent,  whatever  might  have  been  the  regula- 
tions and  restrictions  to  immorality.  This 
theory  has  been  long  and  thoroughly  tested 
and  abandoned.  Let  us  not  be  extravagant  or 
reckless  in  statements,  but  let  us  be  just  as 
careful  not  to  be  timid,  for  I  am  now  dealing 
with  an  extremely  important  matter. 

I  call  attention  to  the  many  cases  cited 
heretofore  in  this  work,  and  especially  to  the 
cases  wherein  chartered  rights  without,  and 
sometimes  for  large  compensation  to  the 
States  have  been  granted  by  legislative  acts 
for  lottery  enterprises,  and  which  acts  have 
been  held  to  be  void.  We  boast,  and  well  we 
may,  of  our  rapid  growth  in  intelligence, 
moral  sense,  and  comprehension  of  legal 


PARTS  OF  THE  SAME  THING        257 

principles.  Every  person  who  claims  to  have 
been  benefited  by  this 'advanced  condition  of 
affairs  must  be  prepared  to  look  at  any  mat- 
ter of  public  concern  calmly  and  thoroughly. 

I  concede  that  there  are  often  immoral  in- 
fluences connected  with  a  useful  and  moral 
business;  but  the  prevailing  tendency  and  in- 
fluence in  any  useful  business  tend  toward 
morality.  Sometimes  a  useful  business  is 
conducted  in  a  dishonest  way  and  upon  dis- 
honest motives;  then  the  whole  business  is 
dishonest  and  immoral,  for  which  the  proprie- 
tor may  be  punished  and  his  business  broken 
up. 

I  have  in  mind  men  who  engaged  in  busi- 
ness as  real  estate  brokers,  which  is  a  legiti- 
mate and  moral  vocation,  but  they  conducted 
it  in  a  fraudulent  and  illegal  way,  on  account 
of  which  they  are  now  paying  the  penalty  in 
the  State  prison,  and  their  business  is  broken 
up  and  their  ill-gotten  gains  restored  to  their 
victim.  Such  transactions  cast  no  taint  of  il- 
legality or  odium  upon  the  legitimate  business 
of  real  estate  brokerage.  I  have  known  gam- 
blers voluntarily  to  restore  ill-gotten  gains; 
and  perform  deeds  of  charity  and  kindness; 
but  that  does  not  make  gambling  the  less  un- 
lawful. 

In  the  saloon  business  a  sale  and  purchase 
of  intoxicating  liquors  may  be  made  that 


258      MORAL  LAW  AND  CIVIL  LAW 

would  not  be  immoral  on  either  side;  more 
than  that,  a  sale  and  purchase  of  intoxicating 
liquors  may  be  made  in  a  saloon  where  the 
transaction  would  be  highly  proper  on  both 
sides — in  case  of  an  emergency. 

But  no  man  undertakes  the  saloon  business 
for  the  purpose  of  selling  to  persons  only,  who 
would  not  in  any  way  be  injured,  or  who 
would  be  better  for  buying  it. 

I  ask  any  candid  man  to  contemplate  the 
bsuiness  of  the  best  possibly  conducted  saloon 
for  one  busy  hour  and  answer  to  his  own 
judgment  what  is  the  prevailing  tendency  of 
that  business  in  that  saloon? 

But  the  question  is  not  to  be  determined  by 
contemplating  the  best  nor  the  worst  conduct- 
ed saloon.  It  is  the  general  tendency  of  the 
saloon  business  that  must  be  taken. 

The  protection  of  morality  does  not  depend 
upon  legislative  enactments,  though  the  en- 
actments of  legislatures  for  this  purpose  are 
very  many.  If  such  enactments  were  all  re- 
pealed, immorality  would  still  be  unlawful, 
and  could  be  suppressed  on  common  law  prin- 
ciples as  well  as  on  the  ground  of  public  nec- 
essity. 

The  Supreme  Court  of  Indiana,  in  the  case 
of  the  Columbia  Athletic  Club  vs.  the  State, 
143  Ind.  98,  quotes  and  approves  the  declara- 
tion of  Lord  Cottingham  and  Judge  Redfield'? 


PARTS  OF  THE  SAME  THING       259 

comments  thereon ;  after  which  the  Court  uses 
the  following  language :  "The  Constitution 
puts  its  special  bans  upon  lotteries,  duels  and 
all  infamous  crimes;  while  at  the  same  time  it 
provides  for  the  moral  and  intellectual  im- 
provement of  the  people.  A  statute  which 
would  attempt  to  authorize  prize-fighting, 
would  most  certainly  be  opposed  to  the  spirit 
of  the  Constitution;  and  indeed  that  of  the 
law  itself." 

An  unlawful  business  gets  no  right  by 
reason  of  long  existence,  or  because  of  public 
acquiescence,  or  against  an  individual  who 
suffers  injury,  because  of  his  acquiescence  for 
a  long  time.  Lawlessness  can  never  become 
lawfulness  by  long  time  existence,  tolerance 
or  acquiescence. 

Let  me  make  myself  clearly  understood 
upon  this  question.  I  concede  that  many 
times  the  higher  courts  have  decided  that 
Legislatures  have  the  power  to  license  the 
sale  of  intoxicating  liquors,  and  I  fully  con- 
cede that  the  Legislatures  have  such  power  for 
proper  purposes  and  under  proper  restrictions 
and  regulations.  The  Supreme  Court  of  the 
United  States  defines  this  legislative  power  in 
the  following  language:  "As  it  is  a  business 
attended  with  danger  to  the  community  it  may 
be  entirely  prohibited  or  be  permitted  under 
such  conditions  as  will  limit  to  the  utmost  its 


260       MORAL  LAW  AND  CIVIL  LAW 

evils."  This  language  of  the  highest  court 
lays  down  the  principle  of  law  involved  in  this 
question.  I  am  not  lecturing  on  temperance 
or  the  use  or  non-use  of  intoxicating  liquors, 
but  I  am  discussing  the  saloon,  the  place  of 
resort  for  the  purpose  of  selling,  buying  and 
drinking  intoxicating  liquors  on  the  premises; 
the  institution,  the  licensed  method  for  the 
sale  of  intoxicating  liquors. 

My  application  of  the  principle  to  the  case 
in  hand  is  that,  as  the  saloon  business  does 
not  limit  nor  lessen,  but  encourages  and  aug- 
ments the  evils  which  arise  from  the  sale  of 
liquors;  as  the  history  of  one  hundred  years 
thoroughly  establishes  that  the  saloon  busi- 
ness, with  its  places  of  resort,  is  the  worst  and 
most  dangerous  system  for  the  sale  of  liquors 
that  could  possibly  be  provided ;  as  the  saloon 
business  is  not  necessarily  connected  with  the 
sale  of  liquor,  as  the  sale  of  intoxicating 
liquors  might  be  provided  for,  for  all  neces- 
sary purposes,  without  connection  with  the 
saloon  business,  or  any  place  of  resort,  for  the 
convenience  and  purpose  of  drinking  the  same, 
therefore  the  Legislature  does  not  have  the 
power  to  license  the  saloon,  the  dangerous  and 
evil  resort. 

This  I  claim  to  be  the  correct  position,  even 
if  the  question  of  morality  were  not  involved 


PARTS  OF  THE  SAME  THING        261 

in  the  case  and  it  stood  upon  the  questions  of 
public  health  and  public  safety. 

A  territorial  government  was  established  for 
the  Northwestern  Territory  in  1787.  That 
Territory  covered  the  region  north  of  the  Ohio 
River,  east  of  the  Mississippi  River,  and  em- 
braced what  are  now  five  States.  The  legisla- 
tive branch  of  the  government  consisted  of  the 
governor  and  three  judges.  The  very  first  act 
of  the  legislative  body  was  a  law  providing  a 
license  system  for  saloons.  That  was  more 
than  one  hundred  years  ago.  I  hold  up  be- 
fore you  that  license  act  beside  the  present 
saloon  license  system  enacted  by  the  Indiana 
Legislature  in  1875,  prepared  and  enacted 
upon  the  demand  and  to  the  satisfaction  of  the 
liquor  interests  of  Indiana,  and  call  your  atten- 
tion to  the  fact  that  the  difference  between 
these  two  acts  is  of  immaterial  and  of  trifling 
importance.  In  many  respects  they  are  iden- 
tical, word  for  word.  For  one  hundred  years, 
except  about  four  years,  a  license  system  has 
ruled  over  the  soil  of  what  is  now  Indiana. 
One  hundred  years  is  long  enough  to  test  any 
system  of  legislation.  The  experience  and 
observation  of  men  for  the  last  hundred  years, 
the  laws  of  inheritance,  the  disposition  of 
property  by  will,  the  rights  of  married  women, 
the  rights  and  uses  of  property,  have  under- 
gone great  changes.  A  public  system  of  edn- 


262      MORAL  LAW  AND  CIVIL  LAW 

cation  has  been  devised,  business  enterprises 
and  inventive  genius  have  stimulated  thought 
into  marvelous  activity.  The  dense  forests 
and  wild  prairies  have  been  converted  into 
fruitful  fields,  prosperous  homes  and  great 
cities.  Conditions,  social  and  political,  have 
undergone  great  changes.  The  rights  of  State, 
of  men  and  property,  have  been  better  defined. 
A  whole  race  has  been  set  free.  Legislation 
and  judicial  decisions  have  done  much  to  pro- 
mote and  protect  fair  dealing  in  business  and 
the  suppression  of  all  phases  of  vice  and  fraud  ; 
a  lottery  system  that  was  so  highly  regarded 
long  after  this  saloon  system  was  adopted 
that  it  was  legally  connected  with  education 
in  the  Vincennes  University,  and  in  the 
construction  of  churches,  and  even  public 
buildings  in  the  capital  city  of  the  nation,  has 
long  since  been  declared  a  crime,  and  sup- 
pressed in  Indiana  and  in  all  other  States. 
Old  theories  and  systems  of  legislation  long 
ago  fled  before  the  marching  columns  of  our 
advancing  civilization.  New  theories  have  been 
tested,  developed  and  abandoned.  But  a  li- 
cense saloon  system  has  survived  them  all, 
without  material  change,  in  this  one  hundred 
years  of  progress  in  all  things  else.  The  sa- 
loon license  law  of  Indiana  remains  to-day  sub- 
stantially the  same  as  the  saloon  license  sys- 
tem for  the  Northwestern  Territory,  adopted 


PARTS  OF  THE  SAME  THING        263 

more  than  one  hundred  years  ago.  After  one 
hundred  years  of  trial  of  this  measure  the 
highest  judicial  tribunal  of  this  nation  declares 
that: 

"The  statistics  of  every  State  show  a 
greater  amount  of  crime  and  misery  attrib- 
utable to  the  use  of  ardent  spirits  obtained  in 
these  retail  liquor  saloons  than  to  any  other 
source." 

The  moral  and  Christian  sentiment  of  the 
whole  world  cries  out  against  it.  And  yet  this 
worst  of  all  evils  and  institutions  remains  and 
retains  its  foothold.  These  saloons  that  were 
trifling  in  their  influence  and  power  a  century 
ago  have,  under  the  fostering  care  of  this 
vicious  system,  grown  so  great  in  wealth  and 
power  that  they  defy  the  laws  we  have 
and  the  government  under  which  they  exist, 
and  boldly  announce  that  the  laws  cannot  be 
enforced  against  them,  and  sneeringly  defy 
the  intelligent  and  civilized  sentiment  of  the 
nation. 

It  seems  to  me  that  under  the  enlightenment 
and  development  of  civilization  and  education 
the  most  surprising  thing  presented  to  our 
view  is  the  continuance  and  prosperity  of  this 
greatest  crime  and  misery  producing  system. 
That  of  all  the  theories  and  systems  of  legisla- 
tion upon  any  subject  the  worst  and  most  de- 
structive should  survive  with  us  more  than 


264      MORAL  LAW  AND  CIVIL  LAW 

one  hundred  years  is  beyond  comprehension. 
I  arraign  this  system  before  the  good  citizens 
of  this  State  and  the  whole  nation,  with  its  one 
hundred  years  of  record  and  history,  every 
page  of  which  is  stained  with  blood,  and  which 
is  condemned  from  every  source  worthy  of 
consideration,  and  charge  it  with  every  crime 
known  to  man,  and  deny  that  it  has  one  re- 
deeming trait.  The  only  plea  offered  in  its 
behalf  is  one  of  confession  and  avoidance,  ad- 
mitting that  it  is  an  evil,  but  claiming  that  it 
is  a  necessary  evil.  I  demur  to  this  plea,  upon 
the  ground  that  there  never  was  and  never  can 
be,  founded  upon  any  legal  principle,  an  evil 
that  is  necessary.  If  an  institution  is  evil  both 
principle  and  the  whole  power  of  the  law  must 
be  arrayed  against  it. 

Some  legal  propositions  are  thoroughly 
settled  by  the  harmonious  decisions  of  the 
highest  courts : 

1.  That  morality,  as  contemplated  in  the 
Constitution  and  laws  of  Indiana,  is  the  mo- 
rality that  is  contemplated  in  the   Christian 
religion. 

2.  That  the  Constitution    of    Indiana    de- 
mands the  Legislature  to  promote  and  protect 
morality. 

3.  That  the  saloon  business  is  an  immoral 
business. 

Hence  the  inevitable  conclusion  is  that  li- 


PARTS  OF  THE  SAME  THING        265 

censing  the  saloon  business  is  licensing  immo- 
rality and  is  bargaining  away  the  public  mo- 
rals and  the  public  safety. 

I  admit  that  Supreme  Courts  of  many  States 
have  held  that  this  is  a  lawful  business ;  but  I 
stand  unawed  in  the  presence  of  these  courts 
and  declare  that  an  immoral  business  cannot 
be  a  lawful  business,  however  apparently 
solemn  may  be  the  act  of  the  Legislature  at- 
tempting to  authorize  the  same,  and  that  the 
saloon  business  is  more  immoral  and  more  un- 
lawful than  the  lottery  business.  The  Legis- 
lature may  authorize,  license,  and  protect  what 
is  right,  and  in  the  interest  and  in  harmony 
with  the  public  welfare,  but  it  may  not  license 
an  immoral  or  evil  business.  I  am  not  attempt- 
ing to  avoid  or  shrink  from  decisions  of  our 
Supreme  Court  in  Indiana,  which  have  specif- 
ically declared  that  the  saloon  business  is  a 
lawful  business  and  that  the  license  system 
is  valid.  Let  me  recognize  and  admit  these 
decisions  fully,  and  all  there  is  in  them,  as  pre- 
cedents upon  this  question. 

The  courts  of  England  had  held,  and  the 
public  had  acquiesced  for  more  than  fifty 
years,  that  slavery  was  a  legal  institution ;  but 
I  have  given  you  the  facts  and  history  of  the 
case  in  which  Lord  Chief  Justice  Mansfield, 
more  than  one  hundred  years  ago,  speaking 
for  the  King's  Bench  and  to  the  civilized  world, 


266      MORAL  LAW  AND  CIVIL  LAW 

utterly  disregarding  all  precedents,  uttered  the 
Christian  and  civilized  sentiments  of  the  peo- 
ple, as  these  sentiments  had  grown  to  be,  that 
such  an  inhuman  and  immoral  institution 
could  not  be  lawful. 

I  have  called  your  attention  to  the  decision 
of  the  Supreme  Court  of  Indiana  in  1879, 
which  declared  that  a  lottery  system  had  be- 
come a  part  of  the  chartered  and  vested  rights 
of  the  Vincennes  University  as  a  perpetual 
right,  and  based  that  decision  upon  numerous 
precedents;  but  the  same  high  court,  to  its 
praise  and  honor  let  it  be  said,  at  a  later  day, 
looking  again  at  the  question  with  more  light, 
overruled  its  own  decision,  disregarded  all  the 
precedents  upon  which  it  was  based,  and  de- 
clared as  the  law  of  Indiana  that  the  lottery 
business  could  not  be  given  legal  existence  nor 
vested  rights  in  our  State,  because  of  its  im- 
morality. 

I  have  called  your  attention  to  the  fact  that, 
though  slavery  had  been  recognized  by  the 
Supreme  Court  of  the  United  States,  and 
acquiesced  in  by  the  people  of  the  nation  as  a 
lawful  institution  for  more  than  two  hundred 
and  fifty  years,  yet  there  came  a  day  when  it 
was  necessary  to  destroy  and  abolish  that  in- 
stitution, though  it  existed  only  as  a  domestic 
institution  in  individual  States,  in  order  to  save 
the  government ;  and  that  great  end  was  ac- 


PARTS  OF  THE  SAME  THING        267 

complished  by  a  proclamation  that  stands  as 
the  greatest  act  of  any  man  in  the  whole  his- 
tory of  the  nation. 

Whatever  may  be  the  precedents,  however 
much  prejudice,  vast  wealth,  and  political  con- 
siderations may  have  been  able  to  claim  and 
accomplish,  the  demand  of  civilization,  the  de- 
mand of  the  public  welfare,  and  demand  of 
sound  legal  principles,  from  every  source  of 
public  safety  comes  the  ceaseless  demand  that 
immorality  shall  not  be  licensed  nor  promoted ; 
"that  the  greatest  source  of  misery  and  crime" 
shall  not  be  protected,  but  must  be  destroyed. 

The  Supreme  Court  of  Indiana,  in  the  case 
of  Haggart  vs.  Stehlin,  illustrated  to  the  people 
its  power  and  courage,  its  high  integrity  and 
regard  for  legal  principles  and  sound  morality, 
by  a  great  advance  in  its  declaration  of  the  law 
as  founded  upon  morality.  Whatever  that 
high  court  may  have  held  at  different  times  in 
years  gone  by,  there  is  a  day  coming,  and  I 
believe  near  at  hand,  when  it  will  strike  a  blow, 
as  did  the  King's  Bench  in  England  at  slavery, 
and  as  our  own  Supreme  Court  did  at  the  lot- 
tery business,  and  destroy  the  license  saloon 
system  of  our  State,  as  will  other  courts  of 
other  States. 

Indiana  boasts  of  her  institutions  of  learning, 
churches,  patriotic  devotion,  and  the  prowess 
of  her  sons  on  the  field  of  battle.  She  takes 


268       MORAL  LAW  AND  CIVIL  LAW 

just  pride  in  her  record  for  loyalty.  Let  me 
call  attention  to  the  fact  that  loyalty  to  the 
State,  to  the  Union  and  government,  requires 
that  morality  shall  be  maintained  with  the 
same  zeal  that  maintained  our  cause  against 
George  III  and  against  disunion. 

There  is  no  disloyalty  equal  to  the  partici- 
pation in,  or  consent  on  the  part  of  the  people 
that  any  system  of  immorality  shall  have  a 
camping  ground  upon  our  soil.  It  is  disloyalty 
and  treachery  to  the  government  to  support 
any  man  for  official  position  who  is  dominated 
by  saloon  influence. 

We  have  in  Indiana  many  institutions  es- 
tablished and  maintained  at  public  expense, 
such  as  Deaf  and  Dumb  Asylum,  Blind 
Asylum,  Insane  Hospital,  State  University, 
Normal  School,  Reform  School  for  Boys,  and 
a  School  for  the  Feeble-minded. 

There  is  one  other  institution  for  which 
there  is  a  crying  need,  and  that  is  a  School  for 
the  Feeble-hearted. 

A  State  and  national  organization  has  been 
perfected  for  the  special  purpose  of  maintain- 
ing and  protecting  the  saloon  business.  This 
institution  is  now  flourishing  in  Indiana.  It 
announces  its  purpose,  among  other  things,  to 
control  legislation.  The  meetings  of  this  or- 
ganization are  not  opened  and  closed  with 
prayer.  It  does  not  depend  on  prayer.  It 


PARTS  OF  THE  SAME  THING       269 

defies  God  and  man.  It  has  tremendous  suc- 
cess and  power  to  overawe  and  intimidate  am- 
bitious politicians,  legislators,  and  many  offi- 
cers whose  duty  it  is  to  enforce  the  law.  Its 
success  lies  in  the  fact  that  it  is  courageous, 
desperately  in  earnest,  and  uses  its  money  and 
influence  without  stint.  Whenever  the  oppo- 
nents of  this  business  become  as  courageous 
and  consistent  as  the  men  who  are  engaged 
in  this  business,  then  the  victory  for  sound 
principles,  law,  and  justice  will  be  won. 

Much  is  made,  and  must  be,  of  the  office  of 
love  in  accomplishing  the  reformation  of  indi- 
viduals. But  love  is  misapplied  if  exercised 
on  behalf  of  immorality  or  lawlessness.  These 
things  are  not  to  be  loved,  but  are  to  be  hated. 
Love  is  for  humanity,  to  be  exercised  in  its 
behalf  and  against  all  evil  influences  and  insti- 
tutions. Abraham  Lincoln  loved  the  govern- 
ment of  the  United  States  when  he  put  two 
millions  of  men  in  the  field,  clothed  in  military 
uniform,  armed  and  supplied  with  munitions 
and  deadly  weapons,  to  put  down  a  rebellion 
by  bloody  war.  General  Grant  loved  his  gov- 
ernment and  the  flag  when  he  stretched  his 
long  lines  of  blue  in  the  wilderness,  and  fought 
it  out  on  that  line  with  shot  and  shell  and 
minie  ball,  with  fixed  bayonets  and  flashing 
sword,  until  he  established  the  supremacy  of 
law. 


270      MORAL  LAW  AND  CIVIL  LAW 

It  is  both  just  to  the  Union  soldiers  and 
magnanimous  to  the  foes  they  opposed  to  say 
that  the  late  civil  war  would  have  been  short- 
lived if  it  had  not  been  that  General  Robert 
E.  Lee  and  the  armies  he  ccmmanded  loved  a 
cause  which  moved  men  to  stand  in  the  jaws  of 
death  undaunted. 

If  a  man  loves  the  right  he  hates  the  wrong. 
If  a  man  loves  God  he  hates  Satan,  and  loves 
God  in  just  the  same  degree  that  he  hates 
Satan. 

If  we  love  the  families  of  the  drunkard  and 
the  drunkard  himself,  and  seek  their  welfare, 
we  hate  the  saloon  institution  as  we  hate 
Satan.  We  make  much  of  the  unbounded 
love  of  Christ,  and  this  cannot  be  overdone. 
The  great  purpose  of  his  life  and  ministry  was 
to  teach  this  love;  but  we  fail  to  comprehend 
the  whole  character  of  the  good  Master  if  we 
study  only  one  side  of  it. 

He  went  one  day  into  the  temple  and  saw 
there  those  who  sold  oxen  and  sheep  and 
doves,  and  the  money  changers.  These  people 
had  been  licensed  by  the  high  priest  for  a 
large  license  fee  to  conduct  these  enterprises 
in  the  temple.  When  He  who  loves  as  no  man 
ever  can  love  saw  this  pollution  of  the  temple 
and  the  wickedness  of  that  license  system, 
with  fire  in  his  eye  and  thongs  in  his  hand  he 
drove  those  people  out  of  the  temple.  I  im- 


PARTS  OF  THE  SAME  THING       271 

agine  I  can  see  the  panic  that  reigned  in  that 
sacred  inclosure  as  the  gates  flew  open  and 
the  animals  and  men  rushed  pell-mell  into  the 
streets  to  escape  pursuit  and  wrath. 

It  is  high  time  that  Christian  civilization,  as 
it  contemplates  the  wickedness,  devastation, 
and  ruin  produced  by  a  licensed  saloon  system, 
should  rise  in  righteous  indignation,  and  with 
fire  in  its  eye  drive  this  business  and  the  sys- 
tem out  of  our  State.  And  the  same  duty  and 
the  same  demand  rest  upon  the  citizens  of 
every  State  in  the  Union.  There  are  other 
very  important  matters  of  public  interest 
which  deeply  concern  good  morals.  These  re- 
quire and  must  have  our  attention ;  but  the 
saloons  and  liquor  business  have  combined, 
and  stand  alone  as  organized  evils  and  immo- 
ral influences.  This  combination  appears 
publicly  in  the  field,  waving  its  banner,  with 
its  lines  formed,  has  issued  its  declaration  of 
war  and  announced  its  purpose  to  maintain, 
at  all  hazards,  the  most  demoralizing  of  all 
evil  influences  and  the  present  system  of  pub- 
lic consent  and  lawlessness.  This  organiza- 
tion exhibits  its  muster  roll,  shows  its  force, 
calls  attention  to  its  bank  account.  This  or- 
ganization must  be  encountered  and  overcome 
by  manly  and  patriotic  effort.  I  am  not 
urging  nor  expecting  that  all  these  great  un- 
dertakings shall  be  accomplished  in  one  day, 


272      MORAL  LAW  AND  CIVIL  LAW 

or  that  any  one  of  them  can  be  disposed  of  at 
once ;  but  the  demand  and  duty  upon  us  are 
that  every  day  shall  record  an  honest  day's 
work  toward  the  accomplishment  of  the  ends 
sought.  There  must  be  steps  taken,  and 
there  can  be  only  one  step  taken  at  a  time,  but 
every  step  should  be  an  advance.  Earnest, 
candid  men  have  no  time  for  equivocation, 
evasion,  or  subterfuge. 

The  Jordan  takes  its  rise  from  the  melting 
snows  of  Mount  Hermon,  is  augmented  by 
the  pure  streams  and  rivulets  that  empty  into 
it.  It  flows  through  what  was  once  the 
richest  land  and  the  most  beautiful  valley  in 
the  whole  world.  Its  waters  are  clear  as 
crystal,  delicious  and  refreshing  to  the  taste ; 
but  it  empties  into  the  Dead  Sea,  in  the  waters 
of  which  there  is  no  living  thing,  and  on  the 
shore  of  which  nothing  can  grow  save  the 
apples  of  Sodom.  So  the  temperance  move- 
ment takes  its  rise  from  the  melting  sympathy 
of  human  hearts ;  on  its  course  receives  and  is 
augmented  by  the  prayers,  energy  and  contri- 
butions that  flow  into  it  through  every  valley 
and  from  every  pure  fountain.  But  we  have 
allowed  the  enemy  to  dig  the  channel  and 
divert  the  course  until  this  pure,  clear,  re- 
freshing, life-giving  stream  has  been  emptying 
into  the  Dead  Sea  of  political  corruption, 
which  is  filled  with  dead  men's  bones  and  col- 


PARTS  OF  THE  SAME  THING       273 

ored  with  human  blood.  The  flow  cannot  and 
must  not  be  stopped;  but  the  natural  channel 
must  be  opened,  so  this  stream  shall  empty 
into  the  great  ocean  of  God's  love. 

I  looked  on  the  cyclorama  of  Gettysburg — 
the  greatest  picture  of  a  real  battle  that  was 
ever  painted.  That  is  the  picture  of  war  with 
all  its  horrors.  After  having  been  enrapt  and 
held  to  the  most  intense  contemplation  of  that 
bloody  scene,  I  turned  away  and  said  to  my- 
self :  "Can  it  be  possible  that  a  people  speaking 
the  same  language,  citizens  of  the  same  gov- 
ernment, bound  by  the  ties  of  consanguinity, 
revering  the  same  history  and  ancestry,  can 
be  brought  into  such  a  struggle  as  this?"  That 
battle  ought  never  to  have  been  fought,  and 
never  would  have  been  fought  if  the  citizens 
of  this  republic  had  performed  their  patriotic 
duty  in  time  of  peace,  and  had  not  suffered 
themselves  to  be  misled  by  mere  partisans 
into  delusions  and  efforts  to  maintain  an  im- 
moral institution. 

Shall  we  be  swayed  by  prejudice,  controlled 
by  designing  men,  cower  before  the  lawless, 
betray  the  government  we  claim  to  love,  and 
leave  to  another  generation  to  settle,  by  the 
flow  of  blood  and  awful  anguish,  questions 
which  we  ought  to  settle,  or  shall  we  learn 
lessons  from  the  past  and  avoid  disaster? 

There  can  be  no  safety  for  any  people  or 


274       MORAL  LAW  AND  CIVIL  LAW 

government  outside  of  sound  legal  principles. 
There  can  be  no  sound  legal  principles  unless 
founded  upon  morality.  These  facts  must  not 
be  confused,  obscured,  nor  lost  sight  of. 


PARTS  OF  THE  SAME  THING        275 


CHAPTER   XV. 
The  Scope  of  Morality. 

TH  E  Court  of  Appeals  in  New  York,  in  the 
case  of  Lyon  vs.  Mitchell,  36  N.  Y.  235, 
hereinbefore  referred  to,  among  other 
things  in  the  definition  of  morality,  said:  "It 
hath  four  chief  virtues — justice,  prudence,  tem- 
perance and  fortitude."  That  is,  morality  means 
all  that  the  words  justice, prudence,  temperance 
and  fortitude."  That  is,  morality  means  all 
that  the  words  justice,  prudence,  temperance 
and  fortitude  combined,  mean ;  and  it  means 
a  vast  deal  more  than  that.  There  are  very 
few  words  in  the  English  language  so  full  of 
meaning  as  this  word,  morality. 

Morality  in  civil  affairs  is  a  principle  of  law, 
irrevocable,  for  the  protection  of  honest  men 
and  honest  business,  and  the  suppression  of 
dishonest  men  and  dishonest  business. 

No  man  nor  company  of  men,  no  legisla- 
ture nor  judicial  tribunal,  invented  nor  cre- 
ated the  principle  of  morality ;  neither  is  there 
any  power  anywhere  to  modify  or  repeal  it. 


276      MORAL  LAW  AND  CIVIL  LAW 

This  principle  was  ordained  when  man  came 
into  the  world. 

Efforts  have  been  made  to  maintain  civil 
government  without  regard  to  morality,  and 
even  in  antagonism  to  it;  but  all  such  efforts 
have  been  failures  and  proven  to  be  disas- 
trous. Moraltiy  must  be  the  keynote,  modu- 
lating the  hum  of  commerce,  to  avoid  discord. 

Morality  must  be  recognized  and  have  its 
way  in  civil  government,  or  there  is  no  se- 
curity. 

If  measurements,  scales  and  representa- 
tions are  adjusted  by  the  rules  of  morality, 
there  will  be  no  panics  in  business  circles. 

Morality  is  the  only  arbiter  between  the 
rich  and  the  poor;  between  capital  and  labor; 
between  the  weak  and  the  strong. 

Morality  must  be  so  distinctly  presented 
and  made  so  familiar,  that  it  can  be  recognized 
when  it  makes  its  demands. 

Morality  is  a  principle  upon  which  no  genius 
ever  invented  an  improvement  and  there  is  no 
possibility  that  such  will  ever  be  done. 

In  civil  affairs,  no  word  is  so  assuring  and 
inspiring;  in  social  affairs,  no  word  is  so  gener- 
al or  so  full  of  meaning;  in  all  the  affairs 
among  men — morality  is  the  good  angel  of 
peace. 

Its  whole  and  sole  mission  in  the  world  is  as 


PARTS  OF  THE  SAME  THING        277 

a  messenger  of  peace  and  prosperity  to  civil 
government  and  social  life. 

Morality  is  not  in  conflict  with  spiritual  re- 
ligion, but  is  its  co-worker.  Whatever  may 
be  the  individual  belief,  or  want  of  belief,  upon 
the  subject  of  religion,  there  is  no  substantial 
contest  over  the  matter  of  morality. 

We  make  no  objection  to  the  words,  ethics, 
equity,  altruism,  honesty,  or  any  other  proper 
word  used  in  a  proper  sense;  but  the  word 
fullest  of  meaning  and  force  and  possibility,  is 
morality,  and  this  word  is  entitled  to  its  place, 
not  to  be  displaced  or  weakened  by  any  forced 
substitute. 

I  claim  for  this  word  its  rights  to  its  place, 
and  that  no  other  word  shall  intrude  upon  the 
sacred  premises  to  which  the  word  "morality" 
is  entitled  to  undisturbed  possession  and 
command. 

Away  back  before  the  organization  of  the 
United  States  government;  before  the  organi- 
zation of  any  of  the  colonies  in  this  country ; 
before  the  landing  of  the  Pilgrims  on  Plymouth 
Rock,  or  the  Hugenots  in  the  South,  or  the 
Cavaliers  in  Virginia;  before  the  discovery  of 
America  by  Columbus;  before  Caesar  crossed 
the  Rubicon ;  before  the  Christian  era ;  before 
Moses  carried  the  tables  of  stone  down  from 
the  mountain  top ;  away  back  to  the  date  when 
Almighty  God  set  up  His  reign  as  a  civil  ruler 


278      MORAL  LAW  AND  CIVIL  LAW 

— morality  was  planted  on  the  earth,  as  im- 
perishable as  the  land  and  the  shining  sun. 

This  principle  was  fixed  by  divine  wisdom 
and  foresight,  to  run  with  the  land  and  sea 
and  the  people  who  occupy  and  use  them. 

The  prosperity  and  general  welfare  of  the 
human  race,  civil,  social  and  commercial,  in  all 
the  past,  have  corresponded  to  the  degree  of 
observation  of  this  law;  and  their  debasement 
and  ruin,  to  the  degree  of  their  disregard  of 
this  principle. 

It  is  certainly  the  religious  and  patriotic 
duty  of  every  citizen  to  study,  practice  and 
teach  the  doctrines  of  this  great  principle. 


A  Book  of  Facts 

ANTI-SALOON  LEAGUE  YEAR  BOOK 


This  volume  is  a  real  encyclopedia  of  Facts 
and  Figures  relating  to  the  Liquor  Problem. 

IT  IS  A  WORK  OF  REFERENCE 

For  the  minister,  teacher,  student,  campaigner 
and  others  interested  in  the  temperance  reform. 

256  PAGES  OF  VALUABLE  DATA 


Containing  seventy  "  wet  "  and  "  dry  "  maps; 
reports  of  conditions  in  every  state;  facts  and  fig- 
ures from  the  reports  of  the  United  States  Com- 
missioner of  Internal  Revenue;  general  Political, 
Economic  and  Historical  Aspects  of  the  Problem. 


PRICE  POSTPAID 
Paper  35  Cents  Cloth  60  Cents 

Send  orders  to  any  state  headquarters  of  the 
Anti-Saloon  League,  or  to 

THE  AMERICAN  ISSUE  PUBLISHING  CO., 

WESTERVILLE,  OHIO. 


FOURTEEN  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 


This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


'.i  .    '     -  ' 

41955LO 

OCT  231986  5  2 

prr  

MAR  20'67-9  AM 

LQA.-J  r.  'r^T. 

flEC     1          57 

RECEIVED 

NOV29'67-10AM 

f>  *'' 

LOAN  DEPT. 

KCC'fi  nfrr  rxi-_i 

-  v  C/KC  DEPi 

» 

WW  4     *?49>- 

tBii.n  IL     *?4 

'p              HAf%9%    ^T 

1. 1 1  HI-lOOm-2,'55 
i  U  i:;(.)s22)476 


General  Library 

University  of  California 

Berkeley 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


